(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Children's Library | Biodiversity Heritage Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

Full text of "International law topics and discussions, 1906"

fTvz^fc f^&sr&C^^ 



Mm 



N. Nav. Sp. 
12-26-6— 1,500-:. 



U. S. NAVAL WAR COLLEGE. 



INTERNATIONAL LAW TOPICS 
AND DISCUSSIONS. 



1906. 



WASHINGTON : 

GOVERNMENT PRINTING OFFICE. 

1907. 



PREFACE. 



Changed conditions in war upon the sea continually introduce 
new problems in international law as in other branches with 
which a naval officer is expected to be familiar. The Naval War 
College has planned from year to year to consider some of these 
problems. The topics for discussion in 1906 were formulated by 
the lecturer on international law, Mr. George Grafton Wilson, 
professor in Brown University, in consultation with the president 
and staff of the Naval War College, and these together with the 
officers in attendance at the Conference of 1906 considered and 
discussed the topics as fully as the limited time permitted. The 
course followed in the Conference was that described in the 
preface to the volume for the year 1905. The conclusions are 
those accepted by a majority of the Conference, and have a value 
corresponding to the thoroughness of its methods and the ex- 
perience of its members. 

This summary of the discussions, prepared by Professor 
Wilson, is published for the information of the naval service. 

J xo. P. Merrell, 
Bear Admiral, U. 8. Navy, President. 
U. S. Naval War College, 

Newport. R. /., March 26, 1901. 

(3) 



TABLE OF CONTEXTS. 



Topic I.— Use of false colors. 

Page 

Conclusion -. 7 

Discussion and notes 7-20 

Reasons for discussion 7 

False colors in land warfare 8 

French attitude toward use at sea 9 

Other opinions 12 

False colors during insurrection .. 14 

Pillet's zone of control 16 

Government regulation as to false colors 16 

Summary 17 

Conclusion 20 

Topic II. — Transfer of flag of merchant vessels during or in 
anticipation af war. 

Conclusion 21 

Discussion and notes 21-45 

General practice as regards commerce ._..._ 21 

Opinions of courts on transfers 22 

Transfer of vessels adapted for war use 25 

Transfers in transitu 26 

Methods of establishing nationality 28 

French regulations _ 30 

United States regulations 31 

Recent English discussions 32 

Nationality of vessels 41 

Conditions requisite to nationality 42 

Existing regulations 42 

Summary 44 

Conclusion 44 

Topic III. — Days of grace for belligerent merchant vessels. 

Conclusion _ _ _ 46 

Discussion and notes 46-65 

Early opinions 46 

Later practice as to persons 47 

Later practice as to vessels 48 

Days of grace in Spanish- American waT 49 

Days of grace in Russo-Japanese war . _ 54 

Treatment of vessels adapted for use in war 56 

Rule of Institute of International Law 59 

Conditions modifying restrictions 60 

Summary _ _ 61 

Conclusion __ 64 

(5) 




D TABLE OF CONTENTS. 

Topic IV. — supplying fuel or oil to belligerent vessel in 
neutral port. 

' Page. 

Conclusion 66 

Discussion and notes 66-87 

Early ideas of neutral obligations 66 

Growing recognition of neutral obligations 67 

Recognition of neutral obligation in Geneva arbitration ... 69 

Proclamation in regard to use of neutral ports _ . 72 

Policy and practice of Great Britain 75 

Policy and practice of France 81 

General drift toward restriction 84 

Conclusion 87 

Topic V. — Mail and passenger vessels in time of war. 

Conclusion 88 

Discussion and notes _. 88-104 

Classes of mail and passenger vessels 88 

Treatment of mail vessels 90 

General conclusion s as to mail vessels 95 

Passenger traffic and transport service 96 

British regulations 98 

United States regulations. 99 

Japanese regulations 99 

Penalty for transport service 99 

International Law Association discussion 100 

Rules of the Institute of International Law 103 

Summary ._ 104 

Conclusion 104 

Topic VI. — Subsidized, .auxiliary, or volunteer vessels in 

time of waf7~ 

Conclusion 105 

Discussion and notes 105-124 

General 105 

Recent British discussion 107 

Prussian plan. 1870 109 

Later plans 113 

United States court decisions .. .- _ 115 

Japanese court decisions 118 

Method of commissioning __ 118 

Need of established character 122 

Summary *. 123 

Conclusions 124 

Appendix. 

eneva Convention for the Amelioration of the Condition of 
the Wounded in Armies in the Field, July 6, 1906 125-138 



INTERNATIONAL LAW TOPICS AND 
DISCUSSIONS. 



Topic I. 



What regulations should be made in regard to the use 
of false colors by public vessels in war? 

CONCLUSION. 

1. The use of false colors by public vessels in war is 
prohibited. 

2. When a public belligerent vessel summons a vessel 
to lie to, or before firing a gun and during action, the 
national colors shall be displayed. 

3. Any vessel not showing her colors in response to a 
summoning gun may be considered and treated as an 
enemy. 

DISCUSSION AND NOTES. 

Reasons for discussion. — The present regulations in re- 
gard to the use of false colors by belligerent vessels in 
time of war are generally understood to permit the use of 
false colors before firing a gun. These regulations are 
an inheritance from an early time. These rules were 
formulated in the days of wooden sailing vessels and 
short-range guns. While the rules of war have changed 
in many respects, these rules have remained unchanged 
and have received a general adherence. These rules were 
originally recognized at a time when neutral rights were 
little considered and the use of a neutral flag by a 
belligerent would be regarded as a matter with which the 
neutral party had little concern. Indeed, it was often 
questioned whether the neutral had any rights which the 
belligerent was bound to respect. 

The war vessel of early days was also very different 
from that of to-day. The approach of the slow sailing 

(?) 



8 USE OF FALSE COLORS. 

vessel of the seventeenth century would allow time to de- 
termine its identity in most instances and to provide for 
action in case of mistake. A single shot from a gun of 
the early type into a vessel of its day would not, in gen- 
eral, have an effect corresponding to that of a shot sent 
into the complicated mechanism of a modern war vessel. 
The fighting in the period before the middle of the nine- 
teenth century was at much shorter range, and time and 
space played a very different part in determining the 
issue of the conflict. Surprise was not, in early condi- 
tions, a matter of gravest importance. In the old days 
the contests were relatively long. In modern battles the 
first shot or those following soon after seem to have been 
very often the decisive ones. 

The risk from permitting the use of false colors is far 
greater than formerly, so it would seem that the protec- 
tion against the risk should be correspondingly developed. 

False colors in land warfare. — The use of false colors 
on land and the toleration of other forms of deceit was 
formerly common, but at present in land warfare false 
colors are forbidden. The regulations are similar to the 
following : 

Instructions United States Army, 1863, Article 65 — 

The use of the enemy's national standard, flag, or other emblem 
of nationality, for the purpose of deceiving the enemy in battle, 
is an act of perfidy by which they lose all claim to the protection 
of the laws of war. 

Brussels Kules, 1874, articles 12, 13 : 

Art. 12. The laws of war do not allow to belligerents an un- 
limited power as to choice of means of injuring the enemy. 
Art. 13. According to this principle are strictly forbidden — 
(/) Abuse of the flag of truce, the national flag, or the mili- 
tary insignia or uniform of the enemy, as well as the distinctive 
badges of the Geneva Convention. 

Oxford Manual. 1880, section 8 : 

It is forbidden — 

(d) To make improper use of the national flag, of signs of 
military rank, or of the uniform of the enemy, of a flag of truce, 
or the protective marks prescribed by the Convention of Geneva. 




FRENCH ATTITUDE. 9 

Hague Convention, Laws and Customs of War on Land, 
1899, Article XXIII : 

Besides the prohibitions provided by special conventions, it is 
especially prohibited — 

(/) To make improper use of a flag of truce, the national flag, 
or military eu signs and the enemy's uniform, as well as the dis- 
tinctive badges of the Geneva Convention. 

It has come to be generally accepted that "deceit in- 
volving perfidy should be forbidden." 

The flag is the emblem held most esteemed and sacred 
among states. It is the usual method of showing alle- 
giance and is to be raised only on sufficient authority. 

The use of false colors on land or similar perfidy de- 
prives the users of the "claim to the protection of the laws 
of war." 

There has not been a similar restriction of the use of 
false colors on the sea, nor is there at present a unanimity 
of opinion in regard to the practice, as shown in various 
authorities. 

French attitude toward the use of false colors at sea. — 
There have been many expressions in regard to the use of 
false colors showing the French point of view. 

One of the earliest provisions in regard to the use of 
false colors at sea is that of France in the ordinance of 
March 17, 1696 : 

Sa Majeste a ordonne et ordonne que tous les capitaines com- 
mandant ses vaisseaux ou ceux armes en course par ses sujets, 
seront tenus d'arborer le pavilion frangais avant de tirer le coup 
d'assurance ou de semonce. Defenses tres expresses leur sont 
faites de tirer sous pavilion etranger a peine d'etre prives, eux et 
leurs armateurs, de tout le provenu de la prise, qui sera confisque 
au profit de Sa Majeste, si le vaisseau est jnge ennemi, et en cas 
que le vaisseau soit juge neutre, les capitaines et armateurs 
seront condamnes aux depens, dommages et interets des pro- 
prietaires. 

A French ordinance of May 22, 1803, provides that the 
French flag shall be displayed before the first shot is dis- 
charged at the enemy. The decree of August 15, 1851, 
is as follows: 



Avant de commencer Taction, le commandant en chef fait 
arborer les marques distinctives et hisser les pavilions francais 
sur tous les batiments. Dans aucun cas, il ne doit combattre 



10 I 8E OF FALSE COLORS. 

sous un autre pavilion. Dans les conibats de nuit, il ordonne 
qu'un f anal soit place au-dessus du pavilion de poupe. 

Ortolan says: 

C'est ainsi que dans les guerres niaritimes on peut, sans for- 
faire a l'honneur, attirer son ennemi au combat ou echapper a 
un ennemi superieur en hissant un faux pavilion ; mais c'est 
un acte reprouve de commencer ou de continuer le combat sous 
un pavilion autre que le sien. Cet acte est puni par les ordon- 
nances franchises. Anciennement il etait meme defendu de 
tirer le coup de canon a poudre, appele coup de canon de semonce, 
sons un pavilion etranger. (2 Diplomatic de la mer, p. 29.) 

De Cussy maintains that — 

Le combat sous pavilion etranger est un acte de f elonie ; il 
est repute acte de piraterie; ce serait vainement qu'on voudrait 
faire envisager comme une ruse pcrmise pour surprendre l'en- 
nemi, de s'etre avance vers lui. couvert d'un pavilion ami. 

Si, dans certaines circonstances, la ruse est licite, c'est unique- 
ment, quand elle ne blesse ni Fhonneur ni la morale. 

[Masquer son desse'ui d'attaquc sous un pavilion ami, afin 
d'ecarter toute defiance du cote du batiment qu'il s'agit d'ap- 
procher, est une action qu'aucun commandant de batiment de 
guerre ne voudrait, de nos jours, se permettre ; sa dignite per- 
sonnelle, la dignite de son pays, l'honneur militaire s'opposeraient 
non pas seulement a la mise en ceuvre d'un semblable moyen, 
mais meme a ce que la pensee put s'en presenter a son esprit. 
(I Phases et causes celebres du droit maritime, p. 257, sec. 25.) 

The use of the uniform of the enemy for purposes 
of deceit is generally condemned. Pradier-Fodere says: 

Les considerations qui devraient faire regarder comme illicite 
l'usurpation de Funiforme de l'eimemi s'appliquent, a plus forte 
raison, a l'usurpation de son drapeau. Je dis a plus forte raison, 
parce que le drapeau est le signe traditionnel qui represente plus 
particulierement la nation, est l'affirmation la plus respectable 
de la nationalite, et qu'arborer un faux drapeau c'est faire une 
affirmation fausse, dont le resultat peut etre de rendre plus 
atroces les horreurs de la guerre en supprimant la confiance qui 
en modere les rigeurs. D'accord avec plusieurs auteurs et avec 
la pratique, Bluntschli enseigne cependant qu'il n'est pas con- 
traire au droit international de tromper l'ennemi en faisant 
usage de son drapeau, de son pavilion, pourvu qu'avant d'en venir 
aux mains chaque corps de troupes, chaque navire, arbore ses 
couleurs. Je conviens qu'il est plus facile d'arborer un drapeau 
au moment d'ouvrir le feu que de changer d'uniforme. Ortolan 
dit que dans les guerres niaritimes on peut. sans forfaire a l'hon- 
neur, attirer son ennemi au combat, ou echapper a un ennemi 



FRENCH ATTITUDE. 11 

superieur, en hissant un faux pavilion, mais que c'est un acte 
reprouve de commencer ou de continuer le combat sous un pavil- 
ion autre que le sien. II rappelle que cet acte est interdit par 
les ordonnances franchises ; qu'anciennement il etait meme de- 
fendu de tirer le coup de canon a poudre, appele coup de canon de 
semonce, sous un pavilion etranger ; que la loi f rangaise, depuis, 
a ordonne seulement d'arborer le pavilion national avant de tirer 
a boulet sur l'ennemi ; qu'avant de commencer Taction, le com- 
mandant en chef doit faire arborer les marques distinctives et 
hisser le pavilion francais sur tous les batiments, et que dans 
aucun cas il ne doit combattre sous un autre pavilion. Que 
l'echange d'un coup de canon a blanc ou a boulet perdu, suivi du 
fait d'arborer le vrai pavilion, entre deux navires de guerre se 
reucontrant en mer, soit l'equivalent de la parole d'honneur des 
commandants qu'ils se presentent sous leurs veritables couleurs, 
il n'y a rien a reprendre dans ce ceremonial ; mais il favit con- 
venir qu'il serait preferable que sous aucun pretexte les bel- 
ligerants n'usurpassent les drapeaux et pavilions d'autrui. (6 
Droit international public, sec. 2760, p. 958.) 

Pillet says in a note upon the use of false colors : 



II est a peine besoin de noter que cette regie absolue de loyaute 
n'interdit pas seulement d'arborer un faux pavilion au moment 
d'un combat naval. Elle interdit tout acte d'hostilite sous un 
pavilion emprunte ; ainsi le fait de deguiser sa nationalite pour 
tenter un debarquement, ou pour franchir une passe defendue par 
des batteries a l'effet de proceder a un bombardement. Tout acte 
d'hostilite proprement dite doit etre accompli par un navire sous 
ses veritables couleurs-. Cette irregularite ne saurait etre admise 
meme a titre de represailles. (Les lois actuelles de la guerre., 
n. 2, sec. 70 bis.) 

Pillet also maintains that — 

On peut par l'emploi d'un faux pavilion essayer de se soustraire 
a la poursuite de l'ennemi, peut-etre meme de forcer un blocus ; 
mais il est absolument interdit par les reglements, aussi bien que 
par les usages de la guerre, de combattre sous un faux pavilion ; 
toute infraction a cette regie serait inexcusable, meme en cas de 
necessite des plus pressantes. (Les lois actuelles de la guerre, 
sec. 70 bis.) 

Rosse says: 

Le droit des gens autorise, en temps de guerre, pour se sous- 
traire aux poursuites de l'ennemi, l'emploi d'un pavilion sup- 
pose ;~ mais il l'interdit rigoureusement comme moyen d'attaque 
ou de surprise. 

Des que le feu est ouvert, l'usage invariable des peuples civi- 
lises veut que chaque navire etablisse loyalenient sa nationalite et 



12 USE OF FALSE COLORS. 

eombattre sons ses propres couleurs. (Guide international du 
commandant du batiment de guerre, p. 112.) 

Other opinions. — Calvo sets forth his opinion as fol- 
lows: 

Le droit des gens autorise en temps de guerre pour se sous- 
traire aux poursuites de l'ennemi l'emploi d'un pavilion sup- 
pose ; mais il l'interdit rigoureusement comme moj'en d'attaque 
ou de surprise. Des que le feu est ouvert, l'usage invariable des 
peuples civilises veut que chaque navire etablisse loyalement sa 
nationality et combatte sous ses propres couleurs. Le fait de 
combattre sous pavilion Stranger est une violation du droit des 
gens, qui fait considerer et traitor comme pirates ceux qui s'en 
rendent coupables. (4 Le droit international, sec. 2124.) 

Glas s gives the following statement of the general prin- 
ciple in regard to stratagems: 

But while we are bound to hold sacred all promises to an 
enemy, and keep all engagements, expressed or implied, we may 
take any advantage of an enemy possible by stratagem or sur- 
prise without perfidy ; indeed, to make use of such means is 
highly commendable. On this account the circulation of any 
intelligence calculated to deceive an enemy is allowable. 

A vessel may hoist false colors to decoy an enemy within range 
of her guns, but to make signals of distress for such a purpose 
would be an act of the greatest perfidy. (Marine International 
Law, p. 392.) 

Halleck says of the rule in regard to the affirming gun : 

The ancient rule of maritime law, as stated by Valin, was that 
the affirming gun {coup de semonce, ou (V assurance) could be 
fired only under the national flag. Such were the provisions of 
the ancient ordinances of France. But article 33 of the Arrete du 
2 Prairial merely prohibited the firing a shot {tirer a boulet) 
under a false flag, and the law of April 10, 1825, article 3, pro- 
vided that captains and officers who commit acts of hostilitij 
under a flag other than that of the state by which they are com- 
missioned, shall be treated as pirates. Ortolan says that the 
affirming gun may be fired under false colors, but all acts of 
hostility must be under the national flag. Masse and Hautefeuille 
seem to adopt the opinion that the affirming gun {coup de se- 
monce) should be fired only under national colors. But as such 
gun is in no respect an act of hostility, we can perceive no good 
reason why it may not be fired under false colors. (International 
Law, Baker's ed., p. 570.) 

,. Testa gives the Portuguese point of view as follows: 

Dans la guerre maritime, le stratageme de hisser un pavilion 
etranger pour tromper l'ennemi superieur en forces et eviter 



ENGLISH OPINIONS. 13 

ainsi le combat, est autorise ; il est permis aussi aux navires de 
guerre de se dissimuler par le desordre de leur tenue et de se 
f aire prendre ainsi pour des navires de commerce ; mais engager 
le combat ou menie affirmer par un coup de canon la nationality 
du navire sous un pavilion qui ne lui appartient pas ; demander 
un secours et simuler un danger pour attirer l'ennemi et le 
surprendre ensuite, sont des actes reprouves par tous. Ce ne sont 
plus la des strategemes de guerre ; c'est la trahison et l'offense 
aux lois dictees par l'honneur et la morale universelle, et en 
certains cas meme, aux lois qui reglent le respect pour la neu- 
tralite." (Droit public international maritime, p. 144.) 

Eisley says there is some difference of opinion in regard 
to the raising of the true flag before firing the affirming 
gun. 

One more lawful stratagem should perhaps be mentioned, and 
that is the sailing of a ship under false colors. A ship of war 
may approach an enemy under false colors, but must hoist her 
own colors before she fires. On getting within range she usually 
fires an "affirming" gun, or a coup de semonce, across the other 
ship's bows, warning her to heave to. This is merely a prelimi- 
nary to search, or, if the other vessel shows fight, to hostilities, 
and therefore some authorities maintain that the true colors need 
not be hoisted until after the affirming gun has been fired. The 
general opinion is that she must hoist her national colors before 
she fires at all. (Law of War, p. 121.) 

Hall states his idea of the use of false colors as follows : 

A curious arbitrary rule affects one class of stratagems by 
forbidding certain permitted means of deception from the mo- 
ment at which they cease to deceive. It is perfectly legitimate 
to use the distinctive emblems of an enemy in order to escape 
from him or to draw his forces into action; but it is held that 
soldiers clothed in the uniforms of their enemy must put on a 
conspicuous mark by which they can be recognized before attack- 
ing, and that a vessel using the enemy's flag must hoist its own 
flag before firing with shot or shell. The rule, disobedience to 
which is considered to entail grave dishonor, has been based on 
the statement that "in actual battle, enemies are bouud to 
combat loyally and are not free to insure victory by putting on a 
mask of friendship." In war upon land victory might be so in- 
sured, and the rule is consequently sensible ; but at sea — and the 
prohibition is spoken of generally with reference to maritime 
war — the mask of friendship no longer misleads when once fight- 
ing begins, and it is not easy to see why it is more disloyal to 
wear a disguise when it is obviously useless, than when it 
serves its purpose. (International Law, 5th ed., p. 538.) 



14 USE OF FALSE COLORS. 

Maine says: 

It must, however, be observed that no deceit is allowable where 
an express or implied engagement exists that the truth should be 
acted or spoken. To violate such an engagement is perfidy, and 
contrary alike to the customs of war and the dictates of honor. 
For example, it is a gross breach of faith and an outrage against 
the customs of war to hoist a hospital flag on buildings not ap- 
propriated to the wounded, or to use a place protected by a 
hospital flag for any other purpose than a hospital. (Inter- 
national Law, p. 149.) 

Ris lev says: 

A fraudulent use of signals of distress as a means of approach 
is not legitimate sailing under false colors, but an act of treach- 
ery. (Law of War, p. 121.) 

It is difficult to understand upon what ground the fly- 
ing of false colors can be justified when used solely for 
the purpose of getting within range of an opponent when 
it is forbidden to fire under false colors the shot which is 
thus made effective. Some statements are to the effect 
that no acts of hostility may be committed under a false 
flag. A recent decision of the Japanese court seems to 
hold properly that hostilities are not merely those acts in- 
volved in physical contact of the belligerent forces, but 
that hostilities date from the time when one force sets out 
with the intention of engaging the other — i. e., when the 
Japanese fleet sailed from Sasebo, and not at the time 
when it attacked the Russians at Port Arthur. 

Questions also arise as to the use of false colors when 
passing a fortification, landing troops, laying mines, or 
in actions not involving the firing of a gun. 

Some authorities maintain that such acts are as directly 
hostile as the firing of a gun and should not be masked 
under false colors, on the ground that perfidy in war is 
forbidden. 

The right to fly the national flag being one most care- 
fully guarded, and the flag being ordinarily held as the 
emblem most entitled to respect, third powers are now be- 
ginning to ask by what right a belligerent flies a flag to 
which it has no right. 

False colors during an insurrection. — The propriety of 
the use of the United States flag by a regular war vessel 



FALSE COLORS DURING INSURRECTION. 15 

i 

of the established Government of Venezuela during the 
period of insurrection was under consideration in 190- • 

The case is summarized in the letter of Mr. Bowen to 
Mr. Hay : 

No. 127.] Legation of the United States, 

Caracas, September 24, 1902. 

Sie : I have the honor to inform you that on the 2 2d instant, 
at 7 p. m., I called on the minister for foreign affairs and told 
him that I had just received the confirmation of a rumor I had 
heard several days before, to the effect that the Venezuelan war 
ship Restaurador had steamed up the Orinoco and entered the 
port o"i~"Ciudad Bolivar flying the American flag at her foremast, 
it having been placed there with the object of deceiving the revo- 
lutionists and of approaching Ciudad Bolivar so closely as to 
permit her to bombard the town effectively. 

I then said to him : 

" Your captain dishonored the American flag ; he should be 
ordered to raise it and salute it, and j r our Government should 
apologize." 

He answered that he had heard nothing about the incident, 
and that he desired to have several days so as to investigate it. 
I replied : 

" The facts that I have presented to you are indisputable, and 
I can give you only twenty hours, for I feel that at the end of 
that time I must cable the facts to my Government." 

He thereupon agreed to act within the time specified. Before 
I left him I told him that the captain of the Restaurador had 
called the day before on Captain Diehl, the commander of the 
U. S. S. Marioita, stating that he had displayed it simply as he 
would have a flag of truce, and that he hauled it down before 
beginning the bombardment. I characterized the captain's ex- 
planation as neither credible nor satisfactory, and the minister's 
silence proved that he believed I meant what I said. 

The following morning the first secretary of state called on me 
at 11 o'clock, and, after stating that his chief was ill in bed, 
informed me that he had been sent by his Government to express 
its regret that the American flag had been used improperly by 
the Restaurador, and that orders would be sent to her captain 
that afternoon to raise it and salute it with 21 guns. He then 
spoke of the earnest desire entertained by his Government to 
maintain friendly relations with the United States, and to re- 
main on the best of terms with this legation. I assured him 
that the sentiments he had expressed are reciprocated most 
warmly by both the United States Government and by this lega- 
tion, and I sent by him my best wishes to the minister for for- 
eign affairs for his speedy recovery. 



16 DSE OF FALSE COLORS. 

« 
After he had gone I sent word to Captain Diehl, through Mr. 

Goldschmidt, our consul at La Guaira, that the Restaurador would 
salute our flag before sunset. Shortly after 5 o'clock Mr. Gold- 
schmidt telephoned me that the full salute of 21 guns had just 
been fired by the Restaurador, and that our flag* meanwhile had 
been displayed at her foremast. 

My reason for not cabling to you for instructions, and for not 
entering into a written discussion with the Venezuelan Govern- 
ment, was because I feared if there was any delay the Restaura- 
dor might leave the port of La Guaira, and thus avoid doing 
honor to the flag she had insulted. 

During my conversation with the Venezuelan authorities I took 

the precaution to have Mr. Russell, the secretary of this legation, 

present, and I am indebted to him for several remarks he made 

that helped to render the settlement of the matter satisfactory. 

I am, etc., 

Herbert W. Bowen. 

(U. S. Foreign Relations, 1902, p. 1073.) 

Pillefs zone of control. — Pillet proposed a plan for a 
circle of jurisdiction about a war vessel, entering which 
any war vessel which had not been recognized would be 
treated as an enemy. Pillet maintains that this would 
work to the advantage of both belligerent and neutral. 

II faudrait reconnaitre an navire de guerre belligerant une 
zone de mer adjacente suffisant a sauvegarde et dans laquelle 
aucun autre navire de guerre non reconnu ne pourrait entrer 
sans etre considere et traite comme ennemi. Le belligerant 
echapperait alors a la dure alternative de couler un neutre inno- 
cent de toute intention hostile, ou de voir un adversaire masque 
s'approcher a une distance telle qu'au moment ou il revelerait 
sa veritable qualite il serait impossible d'echapper a ses coups. 
La situation serait ainsi nettement determines et tout navire 
arme penetrant, sans avoir Justine de sa nationality neutre, dans 
cette zone de protection et de securite assumerait par la meme 
les droits et les risques attaches a la qualite de belligerant. Les 
combattants y gagneraient de se combattre a visage decouvert, 
les neutres vigilants y gagneraient aussi de ne plus etre ex- 
posee a etre pris par erreur pour des ennemis. (5 Revue gene- 
rale de Droit international public, p. 448-449.) 

Regulations as to false colors. — The British Manual of 
Naval Prize Law (1888) provides that — 

The commander may chase, but under no circumstances may 
fire, under false colors. (No. 197.) 



REGULATIONS AS TO FALSE COLORS. 17 

The Manual also provides that for bringing a vessel to, 
the commander — 

should give warning- by firing successively two blank guns, and 
then, if necessary, a shot across her bows ; but before firing, the 
commander, if he has chased under false colors or without show- 
ing his colors, should be careful to hoist the British flag and 
pendant. (No. 200, p. 62.) 

The Kegulations of the Navy of the United States, 1905, 
provide that — 

Under no circumstances shall he (the commander) commence 
an action or fight a battle without the display of the national 

ensign. (No. 293.) 

The Japanese Regulations Governing Captures at Sea 
of 1004-5 provide that — 

The captain of an imperial man-of-war may chase a vessel 
without hoisting the ensign of the imperial navy or under false 
colors. But before giving the vessel the order to stop he must 
display the ensign of the imperial navy. (Article LII.) 

Summary. — The failure to display colors before firing 
a gun is in no sense an act of perfidy. There is in this no 
claim to identity or national character. It is for the 
enemy to find out of what nationality the approaching 
vessel may be. Until this is established the enemy must 
guard against surprise. 

It is evident that there is a considerable diversity of 
opinion and regulation in regard to the use of false colors. 
It is evident that some clearer definition of the use of the 
flag should be made. It is questionable whether the 
present regulation secures the results which upon its face 
it purports to secure, i. e., denies the propriety of combat 
under a false flag, because the most essential part of a 
modern action may not be the firing of a gun, but in case 
of a vessel of inferior speed approaching one superior in 
speed, the important consideration for the inferior vessel 
is to come within a range from which it may be able to 
bring an effective shot to bear upon the superior vessel. 

If the use of false colors be merely for the purpose of 
bringing a merchant vessel within the range of possible 
capture, then under present conditions it hardly seems a 

1894!) 2 



18 USE OF FALSE COLORS. 

practice of greatest importance, as the capture of mer- 
chant vessels is only a means to an end and not the prime 
object of modern warfare. 

It is now generally considered that a neutral has an 
exclusive right to the use of his own flag and the right to 
prescribe under what conditions it may be used. Of 
course this right to the exclusive use of his own flag 
may place upon the neutral certain obligations to guard 
against its misuse. 

A neutral would seem to be acting reasonably in de- 
manding that his national emblem shall not be used by a 
belligerent to cover any act which may work injury to 
the other belligerent, which, as regards the neutral, is a 
friendly state. While the practice has hitherto been tol- 
erated it seems to be an infringement of the natural 
rights of the neutral state. It may also work hardship 
for a neutral vessel, for when the use of its colors is 
permitted to either belligerent it can not surely establish 
its identity by raising its national flag. Such standards 
of action have long been eliminated from land warfare 
and its continuance on the sea is hardly in accord with 
the standard of fair dealing which generally obtains in 
naval warfare. 

The prohibition of the use of false colors by interna- 
tional agreement would give to neutral war vessels much 
greater security in their ordinary and proper movements, 
i. e., in case war should break out between States A and B 
and a war vessel of neutral C, not knowing that Avar 
existed, should for any reason approach a harbor of B 
flying its true colors, it would be free from the risk it 
would otherwise incur. 

The use of the form of stratagem involved in flying 
false colors does not seem to bring any advantage com- 
mensurate with the disadvantages. 

It is admitted that where a vessel summons another to 
lie to the summoning vessel should make known its iden- 
tity by displaying its proper flag, the same is true regard- 
ing a vessel before firing a gun in action. It is claimed 
by many, not without reason, that the rule should be ex- 
tended to cover all classes of hostile action. To prohibit 



SUMMARY. 19 

altogether the use of false colors would be little, if any, 
in advance of this proposition, and would remove from 
consideration all question as to what constitutes hostile 
action. 

On the whole, therefore, it would seem advisable to 
prohibit the use of false colors, but at the same time the 
prohibition should not deprive a belligerent of any proper 
means of attack or defense. 

Pillet's proposed zone (p. 16) within which no other 
man-of-war, not recognized, can enter without being con- 
sidered and treated as an enemy is open to objections. 
The limits of such an arbitrary zone are very difficult to 
determine. Its establishment would in some degree re- 
strict the right of neutrals in the navigation of the high 
seas. A belligerent vessel should have the right to guard 
against attack from points outside any zone that might 
reasonably be established. 

The existing practice that any vessel not showing her 
colors in response to a summons is liable to treatment as 
an enemy should be embodied in any new regulations 
which may be adopted. Such a regulation coupled with 
the prohibition of the use of false colors would enable a 
belligerent to assure himself of the nationality of an ap- 
proaching vessel, or failing that, to take immediate action. 
It would relieve the belligerent of the risk of serious mis- 
take which prevails when false colors are tolerated; for 
certainly it would be a grave misfortune to fire upon an 
innocent passing vessel on the sea on suspicion that she 
might be a belligerent under false colors. 

It is held by some that the prohibition of the use of 
false colors should be limited to their use by the public 
vessels of the belligerents. It is argued, with much force, 
that the use of false colors by a neutral vessel would be 
in itself such strong evidence that the vessel was carrying 
contraband or engaged in unneutral service that the prac- 
tice would be rare; and further, to prohibit a private or 
merchant vessel of a belligerent from using her enemy's 
or a neutral flag, as a possible means of diverting her 
enemy's attention and thus escaping capture, is to deprive 
her of a legitimate stratagem, which involves only per- 



20 USE OF FALSE COLORS. 

missible deceit, not the slightest degree of perfidy, and 
no injury to the neutral in case a neutral flag were used. 
Conclusion. — To bring about results in accord with 
modern ideas, without undue restriction of belligerent 
action, regulations like the following are proposed : 

1. The use of false colors by public vessels in war is 
prohibited. 

2. When a public belligerent vessel summons a vessel 
to lie to, or before firing a gun and during action, the 
national colors shall be displayed. 

3. Any vessel not showing her colors in response to a 
summoning gun may be considered and treated as an 
enemy. 



Topic II. 

What restrictions should be placed upon the transf er 
of flags of merchant vessels during or in anticipation of 
war? 

CONCLUSION. 

(a) The transfer of vessels, when completed before the 
outbreak of war. even though in anticipation of war, 
is valid if in conformity to the laws of the state of the 
vendor and of the vendee. 

(h) The transfer of a private vessel from a belliger- 
ent's flag during war is recognized by the enemy as valid 
only when bona fide and when the title has fully passed 
from the owner and the actual delivery of the vessel to 
the purchaser has been completed in a port outside the 
jurisdiction of the belligerent states in conformity to the 
laws of the state of the vendor and of the vendee. 

DISCUSSION AND NOTES. 

General practice as regards commerce. — Any restriction 
on the sale of vessels in the time of war would be a 
restriction on commerce. As a general rule a citizen of 
a neutral state may carry on commerce in the time of 
war as in the time of peace. It is generally admitted 
also that a belligerent has a right to take reasonable meas- 
ures to bring his opponent to terms. It has been held 
that a neutral may be under obligation to use "due dili- 
gence" in order that acts hostile to either belligerent may 
not be undertaken within its jurisdiction. The arbitra- 
tors in case of the Alabama declared that "due diligence" 
should be "in exact "proportion to the risks to which either 
of the belligerents may be exposed from a failure to fulfill 
the obligations of neutrality on their part." Citizens of 
neutral states can not perform certain services for a bel- 
ligerent without rendering themselves or their property 
liable to treatment as hostile. How far the neutral state 
is bound to interfere in order to prevent its citizens from 
engaging in certain transactions is not fully determined. 

(21) 



22 TRANSFER OF FLAG. 

Ordinary commercial transactions which can not affect 
the issue of the war are permitted. 

In certain respects the purchase of goods belonging to 
a belligerent by a neutral may be a most effective method 
of freeing them from liability to capture. In the case 
of vessels sold by a subject of one state to a subject of 
another state, the transfer to the flag of the nation of the 
new owner ordinarily follows. 

A vessel purchased from a subject of a belligerent by a 
subject of a neutral state would then pass under the pro- 
tection of the neutral state and be exempt from capture. 
There is a great probability, therefore, that transfers will 
be made solely for the purpose of obtaining the protection 
of a neutral flag. Such transfers might not be of the 
nature of a valid sale. The opposing belligerent has 
therefore exercised the right of testing the validity of the 
transfer before the prize court. The Continental practice 
has been more in the direction of regarding all sales made 
with a knowledge of the existence of war as invalid. 
There have been many cases before the American and 
British courts. In these courts the neutral purchaser is 
generally under obligation to establish the validity of his 
claim to the ownership by abundant proof. The attitude 
of the courts under various circumstances may be seen in 
the following opinions: 

Opinions of courts on transfers. — In the case of The 
Jemmy in 1801, Lord Stowell maintained that — 

When an enemy ship has been transferred to a neutral owner, 
but is left under the same management and in the same trade as 
before the transier, the conclusive presumption is raised that the 
transfer is not genuine. (4 C. Robinson's Report, 31.) 

In the case of the Seeks Geschwistem Lord Stowell 
supports the position that a transfer is void if the enemy 
still retains any interest in the transferred property. He 
says: 

This is the case of a ship asserted to have been purchased of 
the enemy, a liberty which this country has not denied to neutral 
merchants, though by the regulation of France it is entirely for- 
bidden. The rule which this country has been content to apply 
is that property so transferred must be bona fide and absolutely 



vl 



OPINIONS OF COURT. 23 

transferred ; that there must be a sale divesting the enemy of all 
further interest in it ; and that anything tending to continue his 
interest vitiates a contract of this description altogether. This 
is the rule which this country has always considered itself justi- 
fied in enforcing ; not forbidding the transfer as illegal, but pre- 
scribing* such rules as reason and common sense suggest to guard 
against collusion and cover, and to enable it to ascertain, as 
much as possible, that the enemy's title is absolutely and com- 
pletely divested. (4 C. Eobinson's Admiralty Eeports, 100.) 

In 1805 Lord Stowell said : 

The court has often had occasion to observe that where a ship, 
asserted to have been transferred, is continued under the former 
agency and in the former habits of trade not all the swearing in 
the world will convince it that it is a genuine transaction. (The 
Omnibus, 6 C. Eobinson's Admiralty Eeports, 71.) 

In the case of the Ernst Merck in 1854, Doctor Lushing- 
ton says : 

This being a sale by a merchant, now become an enemy, very 
shortly before the war, is a transaction requiring to be very nar- 
rowly investigated, and respecting which the court must exercise 
great vigilance lest the property of the enemy should be sheltered 
under a fictitious sale. A real bona fide sale is, no doubt, within 
the bounds of lawful commerce — of commerce lawful to the neu- 
tral ; but if a neutral merchant chooses to engage for the pur- 
pose of extraordinary profit in dangerous speculations of this 
kind, he must be bound to satisfy the court of the fairness of the 
transaction by the clearest evidence, complete in all legal form, 
and not only in legal form, but in truth and reality. If he does 
not produce such proof, or produces it in part only, when the res 
gestw show that better proof might have been adduced, he must 
not expect restitution upon such incomplete evidence. (Spinks' 
English Prize Cases, 98.) 

The law requires, where a vessel has been purchased shortly 
before the commencement of the war or during the war, clear 
and satisfactory proof of the right and title of the neutral claim- 
ant, and of the entire divestment of all right and interest in the 
enemy vendor. The onus is put upon the claimant to produce 
this proof ; if he does not do so the court can not restore. The 
court is not called upon to say that the transaction is proved to 
be fraudulent ; it is not required that the court should declare 
affirmatively that the enemy's interest remains ; it is sufficient to 
bar restitution if the neutral claim is not unequivocally sustained 
by the evidence. {Ibid.) 



24 TRANSFEB OF FLAG. 

In the case of the Sally Ma</c<\ the decision of the 
district court was affirmed by the Supreme Court of the 
United States. It was maintained that — 

The capture clothes the captors with all the rights of the owner 
which subsisted at the commencement of the voyage, and any- 
thing done thereafter, designed to incumber the property or 
change its ownership, is a nullity. No lien created at any time 
by the secret convention of the parties is recognized. Sound pub- 
lic policy and the right administration of justice forbid it. This 
rule is rigidly enforced by all prize tribunals. The property was 
shipped to the enemj'. It was diverted from its course by the 
capture. The allegation of a lien wears the appearance of an 
afterthought. It strikes us as a scheme devised under pressure 
to save, if possible, something from the vortex which it was fore- 
seen inevitably awaited the vessel and cargo. (3 Wallace, Su- 
preme Court Reports, 451.) 

The case of the Ben<f<> Estenger* which was captured 
during the Avar with Spain by a United States war vessel, 
was appealed to the Supreme, Court. 

Mr. Chief Justice Fuller stated that — 

The vessel prior to June 9, 1898, was the property of Enrique 
de Messa, of the firm of Gallego, de Messa & Co., subjects of 
Spain and residents of Cuba. On that day a bill of sale was 
made by de Messa to the claimant, Beattie, a British subject, and 
on compliance with the requirements of the British law govern- 
ing registration, was registered as a British vessel in the port of 
Kingston, Jamaica. The vessel had been engaged in trading with 
the island of Cuba, and more particularly between Kingston and 
Montego, Jamaica, and Manzanillo. Cuba. She left Kingston on' 
the 23d of June, and proceeded with a cargo of flour, rice, corn 
meal, and coffee to Manzanillo, where the cargo was discharged. 
She cleared from Manzanillo at 2 o'clock a. m., June 27, for 
Montego, and then for Kingston, and was captured at half-past 
five of that day off Cape Cruz. The principal question was as 
to the ownership of the vessel and the legality of the alleged 
transfer, but other collateral questions were raised in respect to 
the alleged Cuban sympathies of de Messa; service on behalf 
of the Cuban insurgents in the United States; and the relation 
of the United States consul to the transactions which preceded 
the seizure. It was argued that the vessels of Cuban insurgents 
and other adherents could not be deemed property of the enemies 
of the United States ; that this capture could not be sustained 
on the ground that the vessel was such property; that the con- 
duct of de Messa in his sale to Beattie was lawful, justifiable, 
and the only means of protecting the vessel as neutral property 



TRANSFER OF VESSELS ADAPTED FOR WAR USE. 25 

from Spanish seizure ; and finally, that this court could and 
should do justice by ordering restitution, under all the circum- 
stances of the case. (176 U. S. Supreme Court Reports, 568.) 

The Supreme Court, however, affirmed the decree of the 
district court condemning the vessel as prize, maintain- 
ing— 

1. The trading to a stronghold of the enemy, of an enemy 
vessel carrying provisions," constitutes, under the laws of war, 
illicit intercourse with the enemy, subjecting the property to 
capture as a prize. 

2. The individual acts of friendship of a subject of one nation 
at war, toward the other nation, will not affect his status as an 
enemy. 

3. A United States consul has no authority by virtue of his 
official station to grant any license or permit to exempt a vessel 
of the enemy from capture and confiscation. 

4. A colorable transfer of a ship from a belligerent to a neutral 
is in itself ground for condemnation as prize. 

5. The burden of proving neutral ownership of a vessel in a 
prize case is on the claimants. (Ibid.) 

Transfer of vessels adapted for war use. — The sale of 
a vessel of war or of a vessel so constructed as to be easily- 
adapted for war uses would be open to greater objections 
than the sale of an ordinary vessel primarily suited for 
commercial use only. At the present time many vessels 
are constructed under government subsidy or with some 
agreement by which they pass to government use at the 
outbreak of war. The sale by a belligerent to a neutral of 
a vessel of a character to be especially serviceable in war 
would only in rare cases be regarded as valid. 

Lord Stowell held in 1807 in the case of the Minerv a, 
that — - 

The sale of an enemy ship of war lying in a neutral port to a 
neutral is invalid, and if such vessel after such sale be captured, 
she will be condemned. (6 C. Eobinson's Eeports, 396.) 

During the civil war in America the Georgia^ a vessel 
which had been used as a war vessel b} r the Confederate 
States, was taken into Liverpool, the armament was re- 
moved, and the vessel sold to a neutral at public sale. 
Mr. Adams maintained that — 

The Georgia might be made lawful prize whenever and under 
whatever colors she should be found sailing on the high seas, 



26 TRANSFER OF FLAG. 

and instructed the United States cruisers accordingly. 
It was stated that the purchase by neutrals of ships of 
war belonging to enemies would be invalid if made dur- 
ing hostilities. The Supreme Court of the United States 
said: 

It has been suggested that, admitting the rule of law as above 
stated, the purchase should still be upheld, as the Georgia, in her 
then condition, was not a vessel of war, but had been dismantled, 
and all guns and munitions of war removed; that she was pur- 
chased as a merchant vessel, and fitted up bona fide for the 
merchant service. But the answer to the suggestion is, that if 
this change in the equipment in the neutral port, and in the con- 
templated employment in future of the vessel, could have the 
effect to take her out of the rule, and justify the purchase, it 
would always be in the power of the belligerent to evade it, and 
render futile the reasons on which it is founded. The rule is 
founded on the propriety and justice of taking away from the 
belligerent, not only the power of rescuing his vessel from 
pressure and impending peril of capture, by escaping into a 
neutral port, but also to take away the facility which would 
otherwise exist, by a collusive or even actual sale, of again re- 
joining the naval force of the enemy. The removed armament 
of a vessel, built for war, can be readily replaced, and so can 
every other change be made, or equipment furnished for effect- 
ive and immediate service. The Georgia may be instanced in 
part illustration of this proof. Her deck remained the same, 
from which the pivot guns and others had been taken ; it had 
been built originally strong, in order to sustain the war arma- 
ment, and further strengthened by uprights and stanchions 
beneath. The claimant states that the alterations, repairs, and 
outfit of the vessel for the merchant service cost some £3,000. 
Probably an equal sum would have again fitted her for the re- 
placement of her original armament as a man-of-war. 

The distinction between the purchase of vessels of war from 
the belligerent, in time of war, by neutrals in a neutral port, is 
founded on reason and justice. It prevents the abuse of the 
neutral by partiality toward either belligerent, when the vessels 
of the one are under pressure from the vessels of the others, and 
removes the temptation to collusive or even actual sales, under 
the cover of which they may find their way back again into the 
service of the enemy. (The Georgia, 7 Wallace, 32.) 

Transfers in transitu. — At times belligerents have' en- 
deavored to free their ships from danger of capture by 
transferring them to a neutral while in transitu. The 
courts of all states seem to be uniformly opposed to the 
toleration of such a practice. 



TRANSFERS IN TRANSITU. 27 

The case of the Vrow Margaretha was an early case in- 
volving transfer, in transitu. Admitting that such trans- 
fers may be legitimate in time of peace, Lord Stowell 
says: 

When war intervenes, another rule is set up by courts of ad- 
miralty, which interferes with the ordinary practice. In a state 
of war, existing or imminent, it is held that the property shall be 
deemed to continue as it was at the time of shipment till the 
actual delivery ; this arises out of the state of war, which gives a 
belligerent a right to stop the goods of his enemy. If such a 
rule did not exist all goods shipped in the enemy's country would 
be protected by transfers which it would be impossible to detect. 
It is on that principle held, I believe, as a general rule, that 
property can not be converted in transitu, and in that sense I 
recognize it as the rule of this court. But this arises, as I have 
said, out of a state of war, which creates new rights in other 
parties, and can not be applied to transactions originating, like 
this, in a time of peace. The transfer, therefore, must be con- 
sidered as not invalid in point of law, at the time of the contract ; 
and being made before the war it must be judged according to 
the ordinary rules of commerce. (1 C. Eobinson, Admiralty Re- 
ports, 336.) 

Further, in the case of the Jan Frederick, Lord Stowell 
says: 

That a transfer may take place in transitu, has, I have already 
observed, been decided in two or three cases, where there had 
been no actual war, nor any prospect of war, mixing itself with 
the transaction of the parties. But in time of war this is pro- 
hibited as a vicious contract, being a fraud on belligerent rights, 
not only in the particular transaction, but in the great facility 
which it would necessarily introduce, of evading those rights be- 
yond the possibility of detection. It is a road that, in time of 
war, must be shut up ; for although honest men might be induced 
to travel it with very innocent intentions, the far greater pro- 
portion of those who passed would use it only for sinister pur- 
poses, and with views of fraud on the rights of the belligerent. 
(5 C. Eobinson, Admiralty Reports, 128.) 

When an absolute transfer of title to a vessel is made 
while the vessel is in transitu there is no means of delivery 
of the vessel to the purchaser until it comes into the hands 
of the purchaser. In the case of the Baltica in 1857 the 
question was raised as to the duration of transitus. 

The court held that — 

In order to determine the question, it is necessary to consider 
upon what principle the rule rests, and why it is that a sale 



28 TRANSFER OF FLAG. 

which would be perfectly good if made while the propertj r was in 
a neutral port, or while it was in an enemy's port, is ineffectual 
if made while the ship is on her voyage from one port to the 
other. There seem to be but two possible grounds of distinction. 
The one is, that while the ship is on the seas, the title of the 
vendee can not be completed by actual delivery of the vessel or 
goods ; the other is, that the ship and goods having incurred the 
risk of capture by putting to sea, shall not be permitted to defeat 
the inchoate right of capture by the belligerent powers, until the 
voyage is at an end. 

The former, however, appears to be the true ground on which 
the rule rests. Such transactions during war, or in contempla- 
tion of war, are so likely to be merely colourable, to be set up for 
the purpose of misleading, or defrauding captors, the difficulty of 
detecting such frauds, if mere paper transfers are held sufficient, 
is so great, that the courts have laid down as a general rule, that 
such transfers, without actual delivery, shall be insufficient ; that 
in order to defeat the captors, the possession, as well as the 
property, must be changed before the seizure. It is true that, in 
one sense, the ship and goods may be said to be in transitu till 
they have reached their original port of destination ; but their 
Lordships have found no case where the transfer was held to be 
inoperative after the actual delivery of the property to the owner. 
That the transit us ceases when the property has come into the 
actual possession of the transferee is a doctrine perfectly con- 
sistent with the decisions in the Danckebaar Africaan, and in the 
~Kegotie en Zeevaart, on the authority of which the former case 
was decided * * * 

In the case of the Vrow Margaretha, it is distinctly stated by 
Lord S to well that the transitus ceases by the actual delivery of 
the property. After stating that, by the usage of merchants, a 
transfer of property in transitu may be made by the execution of 
proper documents, he proceeds : "When war intervenes, another 
rule is set up by courts of admiralty, which interferes with the 
ordinary practice. In a state of war, existing or imminent, it is 
held that the property shall be deemed to continue as it was at 
the time of shipment till the actual delivery; this arises out of 
the state of war, which gives a belligerent a right to stop the 
goods of his enemy." He then assigns the reason for the rule, 
namely, that if it were otherwise, "all goods shipped in an 
enemy's country would be protected by transfers which it would 
be impossible to detect," and adds : "It is on that principle held, I 
believe, as a general rule, that property can not be converted in 
transitu, and in that sense I recognize it as the rule of this 
court." (11 Moore, Privy Council, 141.) 

Methods of establishing nationality. — Although certain 
principles seem to have been generally accepted by the 



METHODS OF ESTABLISHING NATIONALITY. 29 

courts, yet there are still many possibilities of complica- 
tions because of lack of uniformity in regard to the 
method of establishing the nationality of a vessel. 

The method by which the nationality of a vessel is de- 
termined is now often provided by treaty. The pro- 
visions between various states and the United States are 
not uniform. 

Argentine Republic, 1853 — 

Aet. VII. The contracting parties agree to consider and treat 
as vessels of the United States and of the Argentine Confedera- 
tion, all those which, being furnished by the competent author- 
ity with a regular passport or sea letter, shall, under the then 
existing laws and regulations of either of the two Governments, 
be recognized fully and bona fide as national vessels by that 
country to which' they respectively belong. 

Belgium, 1875— 

A»T. IX. The high contracting parties agree to consider and to 
treat as Belgian vessels, and as vessels of the United States, all 
those which being provided by the competent authority with a 
passport, sea letter, or any other sufficient document, shall be 
recognized, conformably with existing laws, as national vessels 
in the country to which they respectively belong. 

Bolivia, 1858— 

Aet. XXII. To avoid all kind of vexation and abuse in the ex- 
amination of the papers relating to the ownership of the vessels 
belonging to the citizens of the two contracting parties, they 
agree, that, in case one of them should be engaged in war, the 
ships and vessels belonging to the citizens of the other must be 
furnished with sea letters, or passports, expressing the name, 
property, and bulk of the ships, as also the name and place of 
habitation of the master and commander of said vessel, in order 
that it may hereby appear that said ship truly belongs to the 
citizens of one of the parties ; they likewise agree, that such ships 
being laden, besides the said sea letters or passports, shall also 
be provided with certificates, containing the several particulars 
of the cargo, and the place whence the ship sailed, so that it may 
be known whether any forbidden or contraband goods be on 
board the same; which certificates shall be made out by the 
officers of the place whence the ship sailed, in the accustomed 
form ; without such requisites, said vessels may be detained, to 
be adjudged by the competent tribunal, and may be declared a 
legal prize, unless the said defect shall prove to be owing to 
accident, and supplied by testimony entirely equivalent. 



30 TRANSFER OF FLAG. 

Brazil, 1828, article 21, similar to Bolivia. 
Columbia, 1846, article 22, similar to Bolivia. 
It aly, 1871^" 

Aet. XVII. All vessels sailing under the flag of the United 
States, and furnished with such papers as their laws require, 
shall be regarded in Italy as vessels of the United States, and 
reciprocally, all vessels sailing under the flag of Italy and fur- 
nished with the papers which the laws of Italy require, shall be 
regarded in the United States as Italian vessels. 

The late treaty with Japan in 1894 provides: 

Art. XII. All vessels which, according to the United States 
law, are to be deemed vessels of the United States, and all 
vessels which, according to Japanese law, are to be deemed 
Japanese vessels, shall, for the purposes of this treaty, be deemed 
vessels of the United States and Japanese vessels, respectively. 

The latest treaty with Spain in 1902 contains the fol- 
lowing article: 

Art. XI. All vessels sailing under the flag of the United States, 
and furnished with such papers as their laws require, shall be 
regarded in Spain as United States vessels, and reciprocally, all 
vessels sailing under the flag of Spain and furnished with the 
papers which the laws of Spain require, shall be regarded in the 
United States as Spanish vessels. 

French regulations. — The provision of the early law of 
France in regard to transfer still holds good for that 
country. Article 7 of the Regulations of July 26, 1778, 
provides : 

Les batiments de fabrique ennemie, ou qui auront eu un pro- 
prietaire ennemi, ne pourront etre reputes neutres ou allies s'il 
est trouve a bord quelques pieces authentiques, passes devant des 
officiers publics, qui puissent en assurer la date, et qui justifient 
que la vente ou cession en a ete faite a quelqu'un des puissances 
allies ou neutres avant le commencement des hostilites, et si 
ledit acte translatif de propriete de l'ennemi au sujet neutre ou 
allie n'a ete dument enregistre par-devant le principal officier de 
depart, et signe du proprietaire ou du porteur de ses pouvoirs. 

"The French "Instructions Complementaires" of July 
25, 1870, regard particularly the transfer of vessels to a 
neutral flag. Article 7 provides: 

Lorsqu'il resulte de l'examen des pieces de bord que, depuis la 
declaration de guerre, la nationality du navire anterieurement 
ennemi a ete changee par une vente faite a des neutres ; que 



UNITED STATES REGULATIONS. 31 

celle des proprietaires a ete modifi.ee par naturalisation ou que 
l'equipage d'un batiment neutre comprend une proportion notable 
de sujets ennemis, il y a lieu de proceder avec la plus grande 
attention et de s'assurer que toutes ces operations ont ete execu- 
tes de bonne foi et non dans le seul but de dissimuler une pro- 
priety reellement ennemie. 

United States regulations. — A citizen of the United 
States may purchase and employ abroad a foreign ship 
and may fly the flag of the United States "as an indica- 
tion of ownership and for due protection of his property." 
Such a vessel while entitled to the protection of the 
United States as the property of a citizen is not entitled 
to be registered in the United States. 

Section 4132 of the Revised Statutes 'describes vessels 
which may be registered in the United States: 

Vessels built within the United States, and belonging wholly to 
citizens thereof, and vessels which may be captured in war by 
citizens of the United States and lawfully condemned as prize, 
or which may be adjudged to be forfeited for a breach of the 
laws of the United States, being wholly owned by citizens, and 
no others, may be registered as directed in this title. 

As to the right of a vessel purchased in a foreign coun- 
try by a citizen of the United States to fly the United 
States flag, the Consular Regulations provide that — 

The privilege of carrying the flag of the United States is under 
the regulation of Congress, and it may have been the intention of 
that body that it should be used only by regularly documented 
vessels. No such intention, however, is found in any statute. 
And as a citizen is not prohibited from purchasing and employ- 
ing abroad a foreign ship, it is regarded as reasonable and proper 
that he should be permitted to fly the flag of his country as an 
indication of ownership and for the due protection of his prop- 
erty. The practice of carrying the flag by such vessels is now 
established. The right to do so will not be questioned, and it is 
probable that it would be respected by the courts. (No. 347.) 

Transfers of vessels not entitled to United States regis- 
try to citizens of the United States in order to obtain the 
protection of the United States have been made. Sales 
of vessels under consular certification have been quite fre- 
quent and sometimes for the distinct purpose of avoiding 



32 TRANSFER OF FLAG. 

capture. Ordinarily such transfers are from a belligerent 
to a neutral. 

In L898, during the S panish- American war. however, 
certain vessels owned by the Spanish Compania Maritima, 
a corporation under Spanish laws, but largely foreign 
owned, had a large number of steamers under the Spanish 
flag engaged in inter-island trade. It was known that 
the natives would no longer respect this flag. The officer 
exercising the functions of United States consul at Manila 
certified a bill of sale of these vessels to an American citi- 
zen long resident in Manila and the Captain of the Port 
issued a "provisional register" giving the vessels a right 
to carry the American flag and to receive protection as 
American property. This did not entitle such vessels to 
American registry, but did afford them the protection of 
the flag. This case of transfer of vessels from the flag of 
lone belligerent to the flag of the other seems to be without 
[precedent. 

Transfers en bloc of large numbers of vessels from a 
belligerent to a neutral flag have also been made. Such 
transfers were made during the Chile-Peruvian war in 
1879, in Franco-Chinese troubles in 1885, and at other 
times. Such transfers have come to be considered of 
much importance in determining the result of the war. 

Recent English discussions. — In the Report of the Royal 
Commission on Supply of Food and Raw Material in 
Time of War, presented to the British Parliament in 1905. 
there were various references in the "Minutes of Evidence'' 
(Vol. II) to the transfer in time of war of the flag of 
merchant vessels of a belligerent to a neutral. 

Among these questions are the following: 

In the examination of Sir A. L. Jones, of Messrs. Elder. 
Dempster & Co. — 

5966-5967. Q. (Professor Holland.) As to a transfer to a neu- 
tral flag- ; do yon contemplate that as a possible thing in the case 
of difficulty? — A. Certainly; I am quite prepared to do so to- 
morrow, if there was a war with America; I think that I would 
at once transfer my ships to some neutral flag-, and T would trans- 
fer them to the flag- which is most convenient. 

5968. Q. Suppose war broke out suddenly ; do you imagine that 
you would be quite able to do it? — A. I could do it in a day or 
two. 



RECENT ENGLISH DISCUSSION. 33 

5969-5970. Q. On a transfer to any neutral flag, have you con- 
sidered whether the enemy's cruiser would recognize that as a 
bona fide transfer, if it took place after the outbreak of war? — 
A. I think it is very likely she would ; we had plenty of transfers 
of shipping during the American war. 

5971. Q. We will not, I think, go further into it now, if you 
please. — A. Why do you think the neutral power would not re- 
spect it? 

5972. Q. I am not here to give information, but to try to get it. 

You have said that a war with the United States — which Heaven 

f orf end — might lead to the transfer of our ships to a neutral flag, 

partly on account of American privateers? — A. Or men-of-war; 

you see we have such an enormous lot of ships that it would be 

very easy for the Americans to catch one or two of them. 

* * * * -::- * * 

5986. Q. (Lieutenant Colonel Montgomery.) At the risk of repe- 
tition, would you be good enough now to tell us what would be 
your first consideration with regard to this large fleet that you 
control in the case of a serious apprehension of war? — A. If we 
had war to-morrow, I should begin to inquire at once at what 
rate I could insure outside. I might think that the risk was too 
much for our concern to take it all on its own account. Many of 
our ships are not insured for a penny, and none of them is more 
than half insured. Then if I found that the risk was more than 
I could pay, I should advance my rates of freight to enable me 
to pay the risk that was demanded by the underwriters. 

5987. Q. You would first look to your insurance, and then, hav- 
ing effected the insurance, you would look to get reimbursed by 
the freight you would charge; is that it? — A. Certainly. 

5988. Q. Then, also, as I have gathered from the questions that 
have been put to you, you would take into consideration the sub- 
ject of the transfer to a neutral flag? — A. I would consider any 
fair means by which I could make money and carry on my trade. 
I certainly would not care to have three or four millions sterling 
lying up in the docks if I could insure my ships and get a rate of 
freight to compensate me. If I could put my ships under a neu- 
tral flag, so that I could take the risk myself and get a higher 
rate of freight under the neutral flag, I would do so. It would 
be a question of how to make the most money. 

6040. Q. (Sir John Colomb.) I understood you to say that in 
the event of war you could transfer your ships in a couple of 
hours? — A. Did I not say a couple of days? I think you could 
do that. 

6041. Q. A vast proportion of your ships would be at sea? — A. 
That would not alter it. 

6042. Q. The conditions are these : The overwhelming propor- 
tion of your ships is now at sea, we have an outbreak of war, 

18949 3 



3-i TRANSFER OF FLAG. 

and you say within to-day and to-morrow you could transfer 
these ships? — A. Yes, I think I can. You do not want to have a 
ship in port in order to transfer her. 

604 J. Q. Any of those ships within the next three days may be 
taken, and if one of them was taken by an enemy's cruiser, not 
knowing that she had been transferred, what would happen? — 
A. It would be bad for me. You are quite right; the enemy 
might come up and catch my ship before I got her into port and 
transferred her on the port register ; but I could transfer my 
ship w r hile she was at sea. 

6044. Q. Putting your previous answer together with your 
present answer it comes to this, does it not. that the whole of 
your British ships at sea on the outbreak of war may be covered 
by this transfer, but the ships themselves would not even know it 
and would not have their papers? — A. There is no question about 
that. Until the ship comes into port we might have a little diffi- 
culty if she had been caught in the meantime. But we could 
transfer her. 

6045. Q. (Professor Holland.) Are you aware that a transfer 
at sea before possession is taken would be entirely invalid, and 
would be disregarded by a prize court afterwards, and that the 
ship would be condemned? — A. I think it is very likely, if the ship 
was seized before she got a legitimate transfer in port. Of 
course the man at sea would not know that she was transferred, 
and the man who catches him would say. ''Here is a British ship," 
and off she goes. 

6046. Q. Are you aware that after she got into port subsequent 
to capture, and if the purchaser was ready to take possession, and 
so forth, the whole thing would be invalid, the transfer would be 
thrown aside, and the ship would be condemned? — A. I am not 
aware of that. If I got my ship, for instance, into Antwerp, 
and I had a regular transfer to another company, and the steam- 
ship company received consideration in some way, then, if that 
ship went to sea, I should consider that she was properly a 

Belgian ship. 

* * -::- * -::• * 

6150. Q. (The Duke of Sutherland.) Supposing no arrange- 
ment has been made beforehand, what would be the actual pro- 
cess of transfer to a neutral flag ; how long would it take ? — A. I 
say we would do it in a couple of days. We have done it before 
in a couple of days. 

***** -::- * 

6156. Q. (Mr. Robertson.) I gather that you are familiar with 
the laws of certain - foreign countries, at all events as to ship- 
owning? — A. A little. 

6157. Q. The Company Law more particularly ?— *-A, A little. 

6158. Q. I suppose it is the same in various foreign countries as 
here that the owner of a share in a shipowning company may be 
a foreigner, the ship itself bearing the flag of the nation to which 



RECENT ENGLISH DISCUSSION. 35 

the company belongs — I do not know whether you follow me? — A. 
I quite understand ; you are putting to me whether we might have 
as a shareholder what would be called a foreigner in Belgium — 
that is, an Englishman. 

6159. Q. A foreign shareholder in Belgium, or Spain, or 
France ? — A. I am not quite sure that you can have a foreign 
shareholder there. 

6160. Q. But you can have a foreign shareholder in this 
country ?— A. Yes ; I think you can not have an Englishman as a 
shareholder in a Belgian shipping company, but I am not sure 
about that. 

6161. Q. Can not a foreigner hold a share in a company 
registered in Belgium owning a ship, which ship is bearing the 
Belgian flag? — A. I do not know whether you can do that in 
Belgium, but you can do that in Germany. For instance, you can 
buy a share in the North German Lloyd here. 

6162. Q. I understood you to say that it was the case in 
Belgium also, but at any rate it is the case in this country? — A. 
Yes. 

6163. Q. I want to know whether your experience enables you 
to say how far that is a general feature of foreign company laws 
relating to the owning of ships? — A. I think that a foreigner 
can hold shares in companies. 

6164. Q. In this country? — A. Yes; you can, of course; there 
are lots of foreign shareholders. 

6165. Q. And such a ship would fly the British flag? — A. Cer- 
tainly. 

6166. Q. Therefore the British flag is a mere phrase so far as 
the beneficial ownership of the property in the ship is con- 
cerned ? — A. Yes ; but by taking the foreigner's money we get the 
use of it. 

6167. Q. Still the flag of any nation like ours offers no guar- 
antee as to the nationality of the ownership of the shares of the 
ships? — A. None whatever. 

6168. Q. So that "a British ship" is a mere phrase? — A. Yes, 
of course. 

In the examination of Mr. Douglas Owen — 
6.516. Q. (Lord Balfour, chairman.) You see some special dan- 
ger to our shipping industry in the present state of international 
laws, as I understand it? — A. Yes ; I see very great dangers to 
our shipping from that. I may summarize my reply to that ques- 
tion thus : The danger to our shipping industry is undoubtedly 
great, for the reason that " neutrals " will naturally avoid ship- 
ping by British vessels, liable to capture, so long as neutral ves- 
sels are available not liable to capture. This is inevitable so long 
as private property — shipping — at sea remains liable to capture. 
But the declaration of Paris has introduced a new danger to our 
shipping, inasmuch as it makes neutral shipping a sanctuary for 



5 

36 TRANSFER OF FLAG. 

iy^he owner in such a case for the purposes of prize law is the 
registered owner ; and he could not go behind that and inquire 
what shareholders constitute the corporate registered owner. 

6755. Q. Is not that in one aspect rather a serious state of 
matters for us? — A. 1 think it is. 

6756. Q. In this way, to put it a little more plainly, one of the 
checks upon a real bona fide sale would be the want of neutral 
capital to purchase our great shipping? — A. Yes. 

6757. Q. If they were registered abroad that would be a trans- 
fer which, as you say, the captor could not go behind ; but might 
not that transfer mean a very large and serious loss of our ship- 
ping after the war was over ; or do you think the ships would be 
retransf erred to ourselves? — A. I had not come to that question; 
I had not considered that probability of retransf er ; I think that 
is rather for shipping authorities to say. I was merely dealing 
with this question of the company which might really be a sort of 
cloak for a number of enemy shareholders, and yet might protect 
the ships from being captured. 

6758. Q. Should not the shareholders' list be looked into and 
brought into the prize court? — A. That might not be possible. 

6759. Q. What is the security that some isolated prize court 
might not give a decision suitable to itself under existing cir- 
cumstances, just as yo*u told us a moment ago that the Americans 
had done in one case of theirs about private property? — A. It is 
quite possible, but I think there might be practicable dimcuties in 
the way. I do not see how a visiting cruiser could look into the 
list of the shareholders of the company owning the ship, which 
probably would not be there — it certainly would not be there. 

6760. Q. Would not they detain the whole thing until they got 
the shareholders' list, and would they not say "You must produce 
the shareholders' list before we let you go "? — A. I should not 
think so. They would look at the register, and if the register 
and the other papers were all in order they would dismiss the 
ship. But it is a practical difficulty which, as you say, would 
have to be looked into. Then as to the transfer from one flag to 
another. That was touched on in evidence. I was surprised to 
hear a witness treat it as a very light matter, that you can trans- 
fer from one flag to another in a few hours. Of course you can 
not if the ship is in transitu — till possession is delivered. There 
is the case in the Crimean war relating to the Baltica, which I 
mention in my memorandum, where all that is thoroughly dis- 
cussed. It is very old law that as long as the transitus of the 
vessel continues you can not transfer her to a new flag unless the 
transitus is broken and the neutral purchaser takes possession. 

6761. Q. You therefore brush away the suggestion that a com- 
pany with two domiciles can transfer its ships while they are on 
voyages in all parts of the world? — A. It certainly can not. 



RECENT ENGLISH DISCUSSION. 37 

British goods. The declaration js in effect a " declaration of 
transfer of belligerent commerce to neutral shipping." So far, 
in short, as neutral ships will be available, and neutral owners 
will doubtless seek to buy British shipping, our own merchants 
will inevitably and by force of competition be driven to seek the 
safety of neutral ships and to avoid the danger and expense of 
British ships. So that the more we rely under the treaty of 
Paris on neutral vessels to bring us our national supplies, the 
more we shall be, under the treaty of Paris, driving a "nail into 
the coffin of our own shipping trade." That is the dilemma, 
which seems to me to be unanswerable. 

6517. Q. You will bear in mind, I am sure, that the reference to 
this Commission is as to the supplies of food and raw material in 
time of war ; and, therefore, these issues which you are raising 
are, to some extent, side issues to our particular inquiry. I 
should be the very last person to wish to limit unduly our in- 
quiry, and I certainly recognize as fully as anybody can, and I 
am sure the commission recognizes, the danger of the present 
state of matters in the respect that it might lead to a transfer- 
ence of ships in time of war from our flag to another flag. That 
obviously is a thing which we ought to take reasonable measures 
to guard against, and I think you are quite right to bring it 
before us, and I have no doubt we shall take notice of it. But I 
do not think we should go at length into great schemes for the 
purpose of curing that until Parliament was to decide, or the 
Government was to go to Parliament and say, that this is a 
thing that ought to be cured. Do you follow that? — A. I am 
quite with you, only I thought it my duty, as I was dealing gen- 
erally with the question, to bring it forward. I hold very 
strongly the views I have expressed, but I recognize the justice 
of what you have said. 

In the examination of Professor H ollan d — 

6753. Q. (Lord Balfour, chairman.) May I pass now to the 
questions affecting the nationality of ships? — A. Yes; as to the 
nationality of ships, as against the vessel visited, the flag and 
pass are conclusive ; but a visiting cruiser may not be satisfied in 
every case with these indicia, but will go behind them and in- 
quire into the ownership of the vessel ; that is the real test. 

6754. Q. Who do you mean by the "owner" — the registered 
owner or the real beneficiary owner? — A. The registered owner; 
and if there is a single registered owner who is an alien the 
vessel is enem y property and may be taken in. Then comes the 
difficulty, which was touched upon in evidence, I think, the other 
day, of a company being registered in a neutral country and yet 
being composed of enemy shareholders. That is a new question, 
and I do not think the visiting cruiser could go behind the regis- 
tration of the ship. The captor could not look into the bene- 
ficiary ownership, because i* has been decided several times that 



38 TRANSFER OF FLAG. 

6762. Q. And that transfer would not for a moment be looked 
at by any competent prize court? — A. No, certainly not. Beyond 
that, the prize court would scrutinize with the utmost severity 
the evidence of transfer, quite apart from the question of tran- 
situs. I refer to the Admiralty Manual upon that, which I dare 
say is otherwise accessible. The rules which are laid down by 
Lord Stowell are very minute and careful. 

******* 

6829. Q. (Sir John Colomb.) — As regards the registration of a 
ship as determining her nationality, do I understand your view 
to be that the nationality of a vessel may be determined by the 
country in which the ownership is registered? — A. Yes. 

6830. Q. Do I understand, then, that a company running ships 
under the British flag, and with British subjects, if they regis- 
tered those ships in a foreign country, would thereby cause all of 
them to be of that nationality? — A. They would have to fly the 
flag of the country where they were registered ; the}' would be 
part of the mercantile marine of that country, and they could 
not fly the flag of any other country. 

6831. Q. The mere fact of the ownership being registered in a 
foreign country would not affect the question? — A. No. If a 
ship belong to a company registered in a foreign country, it must 
fly the flag of that country, and is part of the mercantile marine 
of that country. 

6832. Q. You, perhaps, will remember, that a case of this sort 
has been brought before us? — A. Yes. There is a real difficulty 
here, of course. 

■'.'.- ■X 1 -.'? •St -.'- & "St 

6841. Q. I presume that as international law is really for the 
protection of neutrals it would be rather to the interest of the 
neutral under whose flag the ships would be transferred to wink 
at any irregularities? — A. Yes; there is no reason, I suppose, 
why they should be very scrupulous about it. 

6S42. Q. Therefore, really, it is not likely that the neutral 
powers would object to the transfer of ships to their flag as 
being irregular ? — A. Xot at all ; it is for the belligerent to do 
that. 

6843. Q. And the ultimate decision would depend upon whether 
the belligerent was the stronger ; in fact, it would become a 
matter of force? — A. I do not admit that. It is for the belli- 
gerent prize court to decide whether it is lawful capture or not. 
The belligerent seizes the vessel, takes her in, and then eventually 
the Prize Court decides whether it is a proper capture or not. 

6844. Q. Whether she was duly transferred or whether she was 
not? — Yes ; whether it was an illusory transfer or not. 

6845. Q. Speaking generally, it is not likely that the neutrals 
would raise the point of transfer of our ships being irregular or 
not? — A. No, it is no business of theirs. 

6846. Q. It would rather be to their advantage? — A. Yes. 



RECENT ENGLISH DISCUSSION. 39 

6847. Q. (Mr. Emmott.) You state that the presence of even 
one alien among the owners of a ship would disqualify her from 
being registered as British? — A. Yes. 

6848. Q. Would that be the case in other countries, mutatis 
mutandis, of course? — A. On that I would rather refer, because 
I can not remember all the facts, to an article by Mr. Louis de 
Hart (which I think I quote in my memorandum) in the 
Journal of the Society of Comparative Legislation. He has an 
article there on the comparative law of different countries about 
the registration of shipping. 

6849. Q. At present it is the case, is it not, that if there was a 
ship, one of the owners or part owners of which was an alien, 
she could not be registered under a foreign flag or under the 
British flag? — A. She could not be registered here, but a belli- 
gerent cruiser which came across her would, if one of her owners 
was an enemy, capture her, and the prize court would confiscate 

her. 

##-::-# •* * * 

6884. Q. (Sir Geeard Noel.) With regard to the changing of the 
flag, I have a little experience which I might quote. When I was 
on the Board of Admiralty it was part of my duty to do the 
transport business ; on one occasion we wanted to take up a trans- 
port for some service, and there were two transports that we 
knew of which had been fitted for carrying horses or whatever 
was required ; I asked about these and I found that they were 
sailing under the Spanish flag. I thought it was very extraordi- 
nary that two of our British ships which we had quite recently 
employed were sailing under the Spanish flag. They were carry- 
ing troops at the time to Cuba. This was seven or eight years 
ago, and before the war. I got the Admiralty to make inquiries 
at the board of trade as to whether we had any knowledge of 
these things or any means of preventing it, and I am afraid I can 
not tell you what the answer was ; but it seemed to me that it 
was quite possible for an owner of a line of steamers to transfer 
his ships to another flag, practically without asking by your 
leave or with your leave? — A. It is a question for the capturing 
or visiting belligerent. 

6885. Q. This was in peace time? — A. Yes, I know; and there- 
fore the question which we have been discussing hardly arose. We 
have been discussing the question of the right of a belligerent 
cruiser when she visits a ship with suspicious documents on 
board, showing a doubtful change of nationality. I think that is 
a different question from the one you are considering as to the 
right of a Government in time of peace to prevent the transfer 
of its own vessels to another flag. 

6886. Q. It might be the day before the war that you might 
have all these vessels transferred if it can be done in that easy 
manner. Do you think it was a legal act? — A. I think it was all 



40 TRANSFER OF FLAG. 

right, unless done in anticipation of war. If it was found to be 

in immediate anticipation of war, and a belligerent had captured 

the vessel, she would have been confiscated. 

******* 

In the examination of Professor W^stlake — 

6911. Q. (Lord Balfour, chairman.) Do you think you have 
anything to add as to the question of the transfer from British 
owners of a ship flying the British flag to a neutral flag in time 
of hostilities? Do you regard the possibility of the transfer of a 
ship from the British flag to a neutral flag as a proximate danger, 
and a danger which you would apprehend would take place? — A. 
Yes, it would be a danger which would take place, but perhaps 
not in the early part of the war to the extent which has been 
often supposed, because the transfer of a ship from a belligerent 
flag to a neutral one, if it is to have the effect intended in the 
prize court, must be a genuine out-and-out transfer. If there is 
reason to suspect its genuineness, the prize court would inquire 
into it, and it might take a ship which was apparently neutral- 
owned as being substantially still in British ownership. Espe- 
cially at the commencement of war, there would be great difficulty 
in finding sufficient neutral capital to pay for genuine out-and-out 
transfers of British ships on a very large scale. I think that 
especially in the early part of a war the number of ships so 
transferred or apparently transferred, which would be brought in 
for adjudication in the hope that an inquiry by the prize court 
might discover the transfer not to be genuine, would be very 
great ; and in such cases even if transfers were declared genuine, 
and the ships escaped condemnation, there would be great delay 
and expense to their owners. Consequently, I doubt very much 
whether in the early part of a war the rate of insurance upon the 
transferred ships would be so much lower than the rate of insur- 
ance upon British ships, as is commonly supposed. But if the 
war continued, that effect would of course wear away, and after 
two or three years of war, the rates of insurance on British 
ships and neutral ships would no doubt be very different indeed. 

6912. Q. You referred just now to the prize court inquiring into 
the genuineness of a transfer. Do you think the prize court 
would go behind the actual nominal papers which are in the 
vessels? If the papers were correct, would they go into the 
question of bona fide ownership? — A. Undoubtedly they would — 
they would go into all the circumstances attendant on the sale. 

6913. Q. Would you agree with the expression of opinion which 
I think I am not misrepresenting Professor Holland in saying he 
put before us to-day. that if all that they found was a single 
owner belonging to the nation — a British owner in this case — 
with which the other country was at war, the whole vessel would 
be condemned? — A. The French principle is not to look at the 
nationality of the owners, or the proportion in which they are 



RECENT ENGLISH DISCUSSION. 41 

owners, but at the right to carry the flag. The nationality of the 
owners might eoine in incidentally in this way, that the country 
might make the right to carry its flag dependent upon the ships 
which are to enjoy that right being owned wholty, or in a given 
proportion, by subjects of that country. But directly as a motive 
of condemnation, the French courts would not regard the circum- 
stances of ownership, but they would regard the right to carry 
the flag. The right to carry the flag must, of course, be a genuine 
one, and if the sale was found not to be a genuine one, that would 
impair the right to carry the flag, and the flag would be held 
then to be carried fraudulently. 

6914. Q. By what machinery would the prize court get at the 
register of owners ; would it not have to take the transfer papers 
as valid ; how could they go behind them ? — A. They might put 
interrogatories to the parties concerned as to the existence of 
any agreement attending the transfer. 

6915. Q. Naturally; and there would be some hard swearing, 
no doubt? — A. Yes. 

6916. Q. Could the prize court effectively get at the documents 
which would prove the want of bona fides? — A. I think they 
would in a great many cases. A great number of ships in differ- 
ent wars have been condemned upon that ground. 

Such a discussion shows that opinion varies upon many- 
points. In another part of the same report is the follow- 
ing statement : 

Nationality of vessels. — Before leaving the topic of the treat- 
ment to be accorded to different classes of ships, it may be well to 
add a few observations as to the tests which are decisive in re- 
spect of a ship's nationality, and as to the requisites for the valid 
transfer of a ship from one nationality to another. It appears 
that, as a general principle, believed to prevail on the Continent, 
as well as in Great Britain and the United States, the flag, pass, 
and certificate of registry with which a ship sails are, as evidence 
of nationality, conclusive against her, but not in her. favor. A 
belligerent is, however, entitled to go behind these indicia, and 
to inquire into the nationality of the owner, or owners, of the 
vessel ; or, according to the British system, into their commercial 
domicile, i. e., the country in which they, or any one of them, 
trades, or resides while trading elsewhere. It would seem that,' 
should the ship belong to a company, her nationality will be that 
of the country in which the company has its corporate existence. 
A visiting cruiser will not, indeed perhaps can not, inquire into 
the nationality of the shareholders in the company, who, as was 
held in the old case of B. v. Amaud, are not in law the " owners " 
of the ship. Although, therefore, the presence of even one alien 
among the owners of a ship would disqualify her for being regis- 



42 TRANSFER OF FLAG. 

tered as British, she might be registered if owned by a British 
company every shareholder of which is an alien. (Report of the 
Royal Commission on Supply of Food and Raw Material in Time 
of War. Vol. 1. p. 24, sec. 104.) 

Conditions requisite to nationality. — The conditions 
under which a vessel may gain full nationality vary in 
different states according to local laws and regulations. 
Most states place little or no restriction upon national 
construction as an essential for the acquisition of nation- 
ality. The United States, with few exceptions, requires 
national construction for ownership. Some other states 
impose somewhat similar restrictions, as in case 1 of Portu- 
gal and Mexico. The United States statute prescribes in 
general that vessels must not only be built in the United 
States but must belong wholly to citizens thereof. Na- 
tional ownership in some form is quite generally required 
for national registry. Some countries require, however, 
that only a greater part of the vessel, or a certain propor- 
tion, as five-eighths, shall be owned by citizens. The reg- 
ulations in regard to the nationality of the crew vary 
greatly. Some states impose no conditions; others re- 
quire that officers and all the crew be of the nationality 
of the flag. Between these extremes are regulations such 
as the following: Captain, national; captain and one-fifth 
of the crew, national; one-fourth of all, national; the cap- 
tain and one-third of the crew, national ; the captain and 
the greater part of the creAv, national; the captain and 
two-thirds of the crew, national; the captain and three- 
fourths of the crew, national, etc. 

Such variations make evident the need of some regula- 
tion of the method of transfer in order that the validity 
of the rip;ht to flv the flag" mav be sustained. Some states 
admit the right of the vessel to fly the national flag even 
though the vessel may not be allowed national registry. 

Existing regulations. — Certain states have issued regu- 
lations in regard to the treatment of vessels in regard to 
whose right to fly the flag there may be any doubt. The 
regulations issued by Great Britain are the most complete 
and definite. 



EXISTING REGULATIONS. 43 

The British Manual of Naval Prize Law states that — 

The commander will be justified in treating as an enemy 

vessel — 

***** * * 

4. Any vessel apparently owned by a British, allied, or neutral 
subject, as hereinafter defined, if such person has acquired the 
ownership by a transfer from an enemy made after the vessel 
had started upon the voyage during which she is met with, and 
has not yet actually taken possession of her. 

5. Any vessel apparently owned by a British, allied, or neutral 
subject, if such person has acquired the ownership by a transfer 
from an enemy made at any time during the war, or previous to 
the war but in contemplation of its breaking out, unless there is 
satisfactory proof that the transfer was bona fide and complete. 
In the event of such transfer being alleged, the commander 
should call for the bill of sale, and also for any papers or cor- 
respondence relating to the same. If the bill of sale is not forth- 
coming, and its absence is unaccounted for, he should detain the 
vessel. If the bill of sale is produced, its contents should be 
carefully examined, especially in the following particulars : 

(a) The name and residence of the vendor; (&) the name and 
residence of the purchaser; (c) the place and date of the pur- 
chase; (d) the consideration money and the receipt; (e) the 
terms of the sale ; (/) the service of the vessel and the name of 
the master, both before and after the transfer. (P. 6.) 

The British regulations also state that — 

The commander will be justified in treating as a British 
vessel — 

Any vessel apparently owned by a person having a neutral 
commercial domicile, if such person has acquired the ownership 
by a transfer from a British subject made after the vessel had 
started upon the voyage during which she is met with, and has 
not yet actually taken possession of her. 

Any vessel apparently owned by a person having a neutral 
commercial domicile, if such person has acquired the ownership 
by a transfer from a British subject made at any time during 
the war, or previous to the war but in contemplation of its break- 
out, unless there is satisfactory proof that the transfer was bona 
fide and complete. (Manual of Naval Prize Law, 1888, p. 13.) 

Of neutral vessels the British Manual of Naval Prize 
Law (1888) says: 

A vessel apparently owned by a neutral is not really so owned 
if acquired by a transfer from an enemy, or from a British or 
allied subject, made after the vessel had started on the voyage 
during which she is met with, and the transferee has not actu- 
ally taken possession of her. 



44 TRANSFER OF FLAG. 

A vessel apparently owned by a neutral is not really so owned 
if acquired by a transfer from an enemy, or from a British or 
allied subject, made at any time during the war, or previous to 
the war but in contemplation of its breaking out, unless there is 
satisfactory proof that the transfer was bona fide and complete. 
(P. 16.) 

The Japanese regulations resemble the British: 

Art. VI. The following are enemy vessels : 

****** * 

4. Vessels, the ownership of which has been transferred before 
the war, but in expectation of its outbreak or during the war, 
by the enemy state or its subjects to persons having residence in 
Japan or a neutral state, unless there is proof of a complete and 
bona fide transfer of ownership. 

In case the ownership of a vessel is transferred during its 
voyage, and actual delivery is not effected, such transfer of 
ownership shall not be considered as complete and bona fide. 
(Japanese ^Regulations Governing Captures at Sea, 1904.) 

The rules in regard to maritime prize, adopted by the 
Institute of International Law in 1888, provide in regard 
to the transfer of an enemy's vessel in time of war: 

Sec. 26. L'acte juridique constatant la vente d'un navire ennemi 
faite durant la guerre doit etre parfait, et le navire doit etre 
enregistre conformement a la registration du pays dont il ac- 
quere la nationality, avant qu'il quitte le port de sortie. La 
nouvelle nationality ne peut etre acquise au navire par une vente 
faite en cours de voyage. 

Summary. — The nature of the decisions of the courts, 
the temptations to make transfers in transitu, the lack of 
uniformity in treaty provisions, the variation in practice 
as to what is necessary to constitute nationality or requi- 
site for registry, the importance of transfer of flag on the 
conduct of war, the existing rules in regard to transfer of 
flag in time of war, all show the necessity of some regula- 
tion which shall be generally binding. It would seem 
that the following regulations would accord with reason- 
able demands for restrictions. 

Conclusion. — (a) The transfer of vessels, when com- 
pleted before the outbreak of war, even though in antici- 
pation of war, is valid if in conformity to the laws of the 
state of the vendor and of the vendee. 

(b) The transfer of a private vessel from a belligerent's 
flag during war is recognized by the enemy as valid only 



CONCLUSION. 45 

when bona fide and when the title has fully passed from 
the owner and the actual delivery of the vessel to the pur- 
chaser has been completed in a port outside the jurisdic- 
tion of the belligerent states in conformity to the laws of 
the state of the vendor and of the vendee. 




Topic III. 



What regulations should be made in regard to the treat- 
ment of vessels of one belligerent bound for or within the 
ports of the other belligerent at the outbreak of war? 

CONCLUSION. 

1. Each state entering upon a war shall announce a date 
before which enemy vessels bound for or within its ports 
at the outbreak of war shall under ordinary conditions be 
allowed to enter, to discharge cargo, to load cargo, and to 
depart, without liability to capture while sailing directly 
to a permitted destination. If one belligerent state al- 
lows a shorter period than the other, the other state may, 
as a matter of right, reduce its period to correspond 
therewith. 

2. Each belligerent state may make such regulations in 
regard to sojourn , conduct, cargo, destination, and move- 
ments after departure of the innocent enemy vessels as 
may be deemed necessary to protect its military interests. 

3. A private vessel suitable for warlike use, belonging 
to one belligerent and bound for or within the port of 
the other belligerent at the outbreak of war, is liable to 
be detained unless the government of the vessel's flag 
makes a satisfactory agreement that it shall not be put 
to any warlike use, in which case it may be accorded the 
same treatment as innocent enemv vessels. 



/ 



DISCUSSION AND NOTES. 

Early opinions. — Mollo v. writing in the latter part of 
the seventeenth century, says : 

If the ships of any nation happen to arrive in an}' of the King 
of England's ports, and afterwards, and before their departure, a 
war breaks out, they may be secured, privileged without harm of 
body or goods ; but under this limitation, till it be known to the 
King, how the Prince or RepubUcTc of those, whose subjects the 
parties are. have used and treated those of our nation in their 
ports. But if any should be so bold as to visit our ports after a 
war is begun, they are to be dealt with as enemies. (De Jure 
Maritime Bk. I. c. T. XVII.) 

The subjects of one of the belligerent states found 
within the jurisdiction of the other belligerent at the 

(46) 



EARLY OPINIONS. 47 

outbreak of war were liable to be detained as prisoners of 
war in early times. Their property was also liable to 
seizure.. Ayala, in 1579, approved the practice of detain- 
ing the persons. Grotius, in 1625, permitted it as a 
means of weakeningTEe enemy. Bynkershoek, in 1737, 
however, mentions it as a right seldom used. Napoleon 
did detain some English tourists in 1803. 

A treaty of the United. States and Great Britain, rati- 
fied in 1795, provided: 

Art. XXVI. If at any time a rupture should take place (which 
God forbid) between His Majesty and the United States, the mer- 
chants and others of each of the two nations residing" in the 
dominions of the other shall have the privilege of remaining' and 
continuing their trade, so long as they behave peaceablj- and 
commit no offense against the laws ; and in case their conduct 
should render them suspected, and the respective Governments 
should think proper to order them to remove, the term of twelve 
months from the publication of the order shall be allowed them 
for that purpose, to remove with their families, effects, and prop- 
erty, but this favor shall not be extended to those who shall act 
contrary to the established laws. 

Later practice as to persons. — The custom of allowing 
subjects, of one of the belligerent states to sojourn in the 
other belligerent state during good behavior has now 
become quite generally recognized. For special reasons, 
however, the enemy subjects are sometimes expelled, as in 
the early days of the Boer war in 1899. At the com- 
mencement of the Russo-Japanese war a regulation which 
bore severely on many Japanese in the Far East was 
issued by Russia February 27, 1904 : 

1. Les sujets du Japon sont autorises a continuer sous la pro- 
tection des lois russes leur sejour et l'exercice de professions 
paisibles dans PEmpire de Eussie a l'exception des territoires 
faisant partie de la Lieutenance Imperiale en Extreme-Orient. 
(Journal de St. Petersbourg, 16 (29) fevrier, 1904.) 

This made possible the immediate expulsion of Japa- 
nese who had perhaps built up trade which could not be 
immediately discontinued without great hardship. The 
Japanese did not make similar regulations. Those Rus- 
sians who remained in Japan were required to register, as 
were the Chinese during the Chino-Japanese war. 



48 DAYS OF GRACE. 

It may be said that as a general rule the belligerent 
does not drive out of his jurisdiction subjects of his 
opponent. Many treaties specifically provide for their 
sojourn. The treaty of the~United States with Italy in 
1871 reads as follows : 

Art. XXI. If by any fatality which can not be expected, and 
which may God avert, the two contracting parties should be en- 
gaged in a war with each other, they have agreed, and do agree, 
now for then, that there shall be allowed the term of six months 
to the merchants residing on the coasts and in the ports of each 
other, and the term of one year to those who dwell in the inte- 
rior, to arrange their business and transport their effects wher- 
ever they please with the safe conduct necessary to protect them 
and their property, until they arrive at the ports designated for 
their embarkation. And all women and children, scholars of 
every faculty, cultivators of the earth, artisans, mechanics, manu- 
facturers and fishermen, unarmed and inhabiting the unfortified 
towns, villages, or places, and. in general, all others whose occu- 
pations are for the common subsistence and benefit of mankind, 
shall be allowed to continue their respective employments, and 
shall not be molested in their persons, nor shall their houses or 
goods be burnt, or otherwise destroyed, nor their fields wasted 
by the armed force of the belligerent in whose power, by the 
events of war, they may happen to fall ; but if it be necessary 
that anything should be taken from them for the use of such 
belligerent, the same shall be paid for at a reasonable price. 

And it is declared that neither the pretence that war dissolves 
treaties, nor any other whatever, shall be considered as annul- 
ling or suspending this article ; but on the contrary, that the 
state of war is precisely that for which it is provided, and during 
which its provisions are to be sacredly observed, as the most 
acknowledged obligations in the law of nations. 

Later practice as to vessels. — The French declaration of 
March 27, 1854, states : 

Abt. I. Six weeks from the present date are granted to Rus- 
sian ships of commerce to quit the ports of France. Those Rus- 
sian ships which are not actually in our ports, or which may 
have left the ports of Russia previously to the declaration of 
war, may enter into French ports, and remain there for the com- 
pletion of their cargoes, until the 9th of May, inclusive. 

The British order in council of March 29, 1854, stated 
that — 

Her Majesty, being compelled to declare war against His Im- 
perial Majesty the Emperor of all the Russias, and being desirous 
to lessen as much as possible the evils thereof, is pleased, by and 



DAYS OF GRACE IX SPANISH- AMERICAN WAR. 49 

Avith the advice of her Privy Council, to order, and it is hereby 
ordered, that Russian merchant vessels, in any j)orts or places 
within Her Majesty's dominions, shall be allowed until the 10th 
day of May next, six weeks from the date hereof, for loading 
their cargoes and departing from such ports or places ; and that 
such Russian merchant vessels, if met at sea by any of Her 
Majesty's ships, shall be permitted to continue their voyage, if 
on examination of their papers it shall appear that their cargoes 
were taken on board before the expiration of the above term : 
Provided, That nothing herein contained shall extend to or be 
taken to extend to Russian vessels having on board any officer in 
the military or naval service of the enemy, or any article pro- 
hibited or contraband of war, or any dispatch of or to the 
Russian Government. 

And it is hereby further ordered by Her Majesty, by and with 
the advice of her Privy Council as aforesaid, that any Russian 
merchant vessel which, prior to the date of this order, shall have 
sailed from any foreign port bound for any port or place in Her 
Majesty's dominions, shall be permitted to enter such port or 
place, and to discharge her cargo, and afterwards forthwith to 
depart without molestation, and that any such vessel, if met at 
sea by any of Her Majesty's ships, shall be permitted to continue 
her voyage to any port not blockaded. 

On April 7, 1854, it was ordered that Eussian merchant 
vessels then in port should be allowed thirty days in 
which to load and depart. Such vessels were not to be 
molested at sea provided their papers showed that they 
had sailed within the period. 

On April 15 it was ordered that this principle should 
extend to Russian merchant vessels which, before May 15, 
had sailed from a Russian port of the Baltic Sea or White 
Sea for a British destination. 

Days of grace in Spanish- American %oar. — By Article 
II of the Spanish decree of April 23, 1898, .it was stated 
that — 

A term of five days from the date of the publication of the 
present royal decree in the Madrid Gazette is allowed to all 
United States ships anchored in Spanish ports, during which they 
are at liberty to depart. 

By the President's proclamation of April 25, 1898, war 
between the United States and Spain was declared to date 
from April 21, 1898, and it was declared that — 

4. Spanish merchant vessels, in anj' - ports or places within the 
United States, shall be allowed till May 21, 1898, inclusive, for 

18949 4 



50 DAYS OF GRACE. 

loading their cargoes and departing from such ports or places; 
and such Spanish merchant vessels, if met at sea by any United 
States ship, shall be permitted to continue their voyage, if, on 
examination of their papers, it shall appear that their cargoes 
were "taken on board before the expiration of the above term ; 
Provided, That nothing herein contained shall apply to Spanish 
vessels having on board any officer in the military or naval serv- 
ice of the enemy, or any coal (except such as may be necessary 
for their voyage), or any other article prohibited or contraband 
of war, or any dispatch of or to the Spanish Government. 

5. Any Spanish merchant vessel which, prior to April 21, 1898, 
shall have sailed from any foreign port bound for any port or 
place in the United States, shall be permitted to enter such port 
or place, and to discharge her cargo, and afterward forthwith 
to depart without molestation ; and any such vessel, if met at 
sea by any United States ship, shall be permitted to continue her 
voyage to any port not blockaded. 

The fourth clause of the above proclamation has re- 
ceived full judicial consideration from the Supreme Court 
of the United States in the case of the Buena Ventura. 
Mr. Justice Peckham, rendering the opinion of the court, 

says: 

What is included by the words " Spanish merchant vessels in 
any ports or places within the United States shall be allowed 
until May 21, 1898, inclusive, for loading their cargoes and de- 
parting from such ports or places " ? At what time must these 
Spanish vessels be "in any ports or places within the United 
States" in order to be exempt from capture? The time is not 
stated in the proclamation, and therefore the intention of the 
Executive as to the time must be inferred. It is a case for con- 
struction or interpretation of the language employed. 

The language is open to several possible constructions. It 
might be said that in describing Spanish merchant vessels in any 
ports, etc., it was meant to include only those which were in such 
ports on the day when the proclamation was issued, April 26. Or 
it might be held (in accordance with the decision of the district 
court) to include those that were in such ports on the 21st of 
April, the day that war commenced, as Congress declared. Or it 
might be construed so as to include not alone those vessels that 
were in port on that day, but also those that had sailed there- 
from on any day up to and including the 21st of May, the last 
day of exemption, and were, when captured, continuing their 
voyage, without regard to the particular date of their departure 
from port, whether immediately before or subsequently to the 
commencement of the war or the issuing of the proclamation. . 

The district judge, before whom several cases were tried 
together, held that the date of the commencement of the war 



CASE OF BUENA VENTURA. 51 

(April 21) was the date intended by the Executive; that as the 
proclamation of the 22d of April gave thirty days to neutral ves- 
sels found in blockaded ports, it was but reasonable to consider 
that the same number of days, commencing' at the outbreak of 
the war, should be allowed so as to bring it to the 21st of May, 
the day named ; that although a retrospective effect is not usually 
given to stautes, yet the question always is, what was the inten- 
tion of the legislature? 

He also said that "the intention of the Executive was to fully 
recognize the recent practice of civilized nations, and not to 
sanction or permit the seizure of the vessels of the enemy within 
the harbors of the United States at the time of the commence- 
ment of the war, or to permit them to escape from ports to be 
seized immediately upon entering upon the high seas." (See 
preamble to proclamation.) 

In the Buena Ventura, the case at bar, the district judge held 
that her case " clearly does not come within the language of the 
proclamation." 

It is true the proclamation did not in so many words pro- 
vide that vessels which had loaded in a port of the United States 
and sailed therefrom before the commencement of the war should 
be entitled to continue their voyage, but we think that those 
vessels are clearly within the intention of the proclamation under 
the liberal construction we are bound to give to that document. 

An intention to include vessels of this class in the exemption 
from capture seems to us a necessary consequence of the lan- 
guage used in the proclamation when interpreted according to 
the known views of this Government on the subject and which 
it is to be presumed were the views of the Executive. The 
vessel when captured had violated no law, she had sailed from 
Ship Island after having obtained written permission, in accord- 
ance with the laws of the United States, to proceed to Norfolk 
in Virginia, and the permission had been signed by the deputy 
collector of the port and the fees therefor paid by the ship. She 
had a cargo of lumber, loaded but a short time before the com- 
mencement of the war, and she left the port but forty-eight hours 
prior to that event. The language of the proclamation cer- 
tainly does not preclude the exemption of this vessel, and it is 
not an unnatural or forced construction of the fourth clause to 
say that it includes this case. 

The omission of any date in this clause, upon which the vessel 
must be in a port of the United States, and prior to which the 
exemption would not be allowed, is certainly very strong evidence 
that such a date was not material, so long as the loading and de- 
parture from our ports were accomplished before the expiration 
of May 21. It is also evident from the language used that the 
material concern was to fix a time in the future, prior to the 
expiration of which vessels of the character named might sail 



52 DAYS OF GRACE. 

from our ports and be exempt from capture. The particular 
time at which the loading- of cargoes and sailing from our ports 
should be accomplished was obviously unimportant, provided it 
was prior to the time specified. Whether it was before or after 
the commencement of the war, would be entirely immaterial. 
This seems to us to be the intention of the Executive, derived 
from reading the fourth clause with reference to the general 
rules of interpretation already spoken of, and we think there is 
no language in the proclamation which precludes the giving 
effect to such intention. Its purpose was to protect innocent 
merchantmen of the enemy who had been trading in our ports 
from capture, provided they sailed from such ports before a cer- 
tain named time in the future, and that purpose would be wholly 
unaffected b} r the fact of a sailing prior to the war. That fact 
was immaterial to the scheme of the proclamation, gathered 
from all its language. 

We do not assert that the clause would apply to a vessel 
which had left a port of the United States prior to the commence- 
ment of the war and had arrived at a foreign port and there dis- 
charged her cargo, and had then left for another foreign port prior 
to May 21. The instructions to United States ships, contained in 
the fourth clause, to permit the vessels "to continue their voyage'* 
would limit the operation of the clause to those vessels that were 
still on their original voyage from the United States, and had 
taken on board their cargo (if any they had) at a port of the 
United States before the expiration of the term mentioned. The 
exemption would probably not apply to such a case as The PJirriiix 
(Spink's Prize Cases, 1). That case arose out of the English 
order in council, made at the commencement of the Crimean war. 
The vessel had sailed from an English port in the middle of 
February, 1854, with a cargo, bound for Copenhagen, and having 
reached that port and discharged her cargo by the middle of 
March, she had sailed therefrom on the 10th of April, bound to a 
foreign port, and w r as captured on the 12th of April while pro- 
ceeding on such voyage. The order in council was dated the 
29th of March, 1854, and provided that "Russian merchant vessels, 
in any ports or places within Her Majesty's dominions, shall be 
allowed until the tenth day of May next, six weeks from the date 
hereof, for loading their cargoes and departing from such ports 
or places," etc. The claim of exemption was made on the ground 
that the vessel had been in an English port, and although she 
sailed therefrom in the middle of February to Copenhagen and 
had there discharged her cargo, before the order in council was 
promulgated, yet it was still urged that she was entitled to ex- 
emption from capture. The court held the claim was not well 
founded, and that it could not by any latitude of construction 
hold a vessel to have been in an English port on the 29th of 
March, which on that day was lying in the port of Copenhagen, 
having at that time discharged the cargo which she had taken 



CASE OF BUENA VENTURA. 53 

from the English port. It is true the court took the view that 
the vessel must at all events have been in an English port on the 
29th of March in order to obtain exemption, and if not there on 
that day, the vessel did not come within the terms of the order and 
was not exempt from capture. From the language of the opinion 
in that case it would seem not only that a vessel dej^arting the 
day before the 29th of March would not come within the ex- 
emption, but that a vessel arriving the day after the 29th, and 
departing before the 10th of May following, would also fail to do 
so ; that the vessel must have been in an English port on the 
very day named, and if it departed the day before or arrived 
the day after, it was not covered by the order. 

The French Government also, on the outbreak of the Crimean 
war, decreed a delay of six weeks, beginning on the date of the 
decree, to Russian merchant vessels in which to leave French 
ports. Russia issued the same kind of a decree, and other 
nations have at times made the same provisions. It is claimed 
that they confine the exemption to vessels that are actually 
within the ports of the nation at the date of issuing the decree 
or order. 

We are not inclined to put so narrow a construction upon the 
language used in this proclamation. The interpretation which 
we have given to it, while it may be more liberal than the other, 
is still one which may properly be indulged in. 

If this vessel, instead of sailing on the 19th, had not sailed 
until the 21st of April, the court below says she would have been 
exempt from capture. In truth, she was from her character and 
her actual employment just as much the subject of liberal treat- 
ment, and was as equitably entitled to an exemption when sailing 
on the 19th, as she would have been had she waited until the 21st. 
No fact had occurred since her sailing which altered her case in 
principle from the case of a vessel which had been in port on, 
though sailing after, the 21st. To attribute an intention on the 
part of the Executive to exempt a vessel if she sailed on or after 
the 21st of April, and before the 21st of May, and to refuse such 
exemption to a vessel in precisely the same situation, only sailing* 
before the 21st, would as we think, be without reasonable justi- 
fication. It may safely be affirmed that he never had any such 
distinction in mind and never intended it to exist. There is 
nothing in the nature of the two cases calling for a difference 
in their treatment. They both alike called for precisely the same 
rule, and if there be language in the clause or proclamation from 
which an inference can be drawn favorable to the exemption, and 
none which precludes it, we are bound to hold that the exception 
is given. We think the language of the proclamation does per- 
mit the inference and that there is none which precludes it. 

We are aware of no a'd judications of our own court as to the 
meaning to be given to words similar to those contained in the 



54 DAYS OF GRACE. 

proclamation, and it may be that a step in advance is now taken 
upon this subject. Where, however, the words are reasonably- 
capable of an interpretation which shall include a vessel of this 
description in the exemption from capture, we are not averse to 
adopting- it, even though this court may be the first to do so. 
If the Executive should hereafter be inclined to take the other 
view, the language of his proclamation could be so altered as to 
leave no doubt of that intention, and it would be the duty of this 
court to be guided and controlled by it. (175 U. S. Supreme 
Court Eeports, 384.) 

Days of grace in Russo-Japanese war. — The wars of 
the latter half of the nineteenth century were in the main 
land wars. In such Avars the rights of neutrals being ordi- 
narily little involved, tended to become established. Mari- 
time rights also tended to become fixed and liberal and 
assimilated to land rights. In the Spanish- American and 
in the South African wars, neutrals were not much 
involved nor were maritime rights largely involved. The 
Russo-Japanese war of 1904—5, however, being to a con- 
siderable extent a naval war, has brought questions of 
neutral and maritime rights into prominence. Much 
more deliberation and forbearance has been shown by all 
parties in dealing with questions raised during the Russo- 
Japanese wqr, because the states involved as neutrals are 
states having and relying on naval power. These states 
therefore realize that positions which they may assume 
in the early days of the twentieth century may later be 
quoted against them. There has consequently been a 
tendency to look with tolerance on the extension of bel- 
ligerent activities. 

The Japanese ordinance relating to the exemption of 
Russian merchant vessels from seizure was published 
February 9. It provided — 

Aet. 1. Russian merchant ships which happen to be moored in 
any Japanese port at the time of the issue of the present rules 
may discharge or load their cargo and leave the country not later 
than February 16. 

Aet. II. Russian merchant ships which have left Japan in ac- 
cordance with the foregoing article and which are provided with 
a special certificate from the Japanese authorities shall not be 
captured if they can prove that they are steaming back direct to 
the nearest Russian port, or a leased port, or to their original 
destination ; this measure shall, however, not apply in case such 



a. 




DAYS OF GRACE IN RUSSO-JAPANESE WAR. 

the days of grace down to a minimum, is almost certain to do 
especially if its own sea-borne commerce is so small that little is 
to be feared from retaliatory measures. But, quite apart from 
purely mercantile considerations, we must reckon here, as in 
many other questions, with the changed conditions of modern 
warfare. If a sea-going fleet is to be effective for long together, 
it must be followed by a train of colliers, supply ships, repairing 
vessels, and hosts of others, carrying all the numerous require- 
ments of a navy which is a mass of complicated machinery, and 
is afflicted with an insatiable hunger for coal. If, on a sudden 
outbreak of war, a belligerent finds his ports full of merchant- 
men belonging to enemy owners, and well adapted for the pur- 
poses I have described, he may capture them all, dispensing with 
days of grace entirely, and taking full advantage of the oppor- 
tunity which fortune has placed in his hands. In such a case it 
would be curious to see whether the desire to injure the enemy 
would prevail over the fear of offending neutrals, by causing a 
great dislocation of trade in which some of them are sure to be 
interested. Certainly it will be wise for British shipowners to 
read the signs of the times, and not calculate upon a continuance 
in future of the indulgences which have been accorded in recent 
years on the outbreak of hostilities to the merchantmen of the 
belligerent states. There is one class of vessel against which the 
full rights of war will almost certainly be exercised. I refer to 
swift liners, built on designs which make them easily adaptable 
for warlike purposes, and liable to be taken over by their govern- 
ments in the event of hostilities. It would be criminal folly for| 
a state to permit the departure of any such ships of enemy* 
nationality which happened to be in its ports at the outbreak of \ 
a great war. (War and Neutrality in the Far East, 2d ed., p. 53.) 

Treatment of vessels adapted for use in war. — One of 
the most difficult questions in the conduct of maritime 
warfare in modern times is the determination of the 
method of treatment of vessels which though in time of 
peace are commercial vessels, yet in time of war are easily 
converted into vessels of war. If such vessels are in or 
come into port of one of the belligerents and belong to 
the other belligerent it is hardly reasonable to expect that 
they will be allowed freely to depart to augment the 
military forces of the other belligerent. It is very diffi- 
cult to draw the line between vessels which may and 
which may not be converted to usefulness in war. Fast 
steamers may be of service as scouts even though not 
fitted for carrying heavy guns, slow steamers of large 
capacity may be of service as colliers, indeed at the present 




^6" DAYS OF GRACE. 

Russian merchant ships have once touched at a Russian port or 
a leased port. 

Art. III. Russian steamers which may have left for a Japanese 
port before February f£ may enter our ports, discharge their 
cargo at once, and leave the country. The Russian steamers 
coming under the above category shall be treated in accordance 
with Article II. 

Ai:t. IV. Russian steamers carrying contraband of war of any 
kind whatever shall lie excluded from the above rules. 



Thus Japan allowed [seven days of grace. 

On February 14. 1904, the Russian Government issued 
fhe following rules: 

I. Japanese subjects are allowed to continue, under the pro- 
ection of the Russian laws, their sojourn and the exercise of 

peaceful occupations in the Russian Empire excepting in the ter- 
ritories which are under the control of the imperial vicero3 r in the 
Far East. 

II. Japanese trading vessels which were in Russian ports or 
havens at the time of the declaration of the war are authorized 
to remain at such ports before putting out to sea with goods 
which do not constitute articles of contraband during the delay 
required in proportion to the cargo of the vessel, but which in any 
case must not exceed forty-eight hours from the time of the 
publication of the present declaration by the local authorities. 

Thus a limit of time not to exceed forty-eight hours 
from the publication of the imperial order was allowed. 

Speaking of the days of grace allowed by Russia and 
Japan in 1004. Professor Lawrence say.- : 

The sea-borne trade of Russia in the northern Pacific is not 
large in extent or enormous in value. She can afford to see it 
suffer with equanimity. Japan, on the other hand, has much to 
lose. Of late the increase of her mercantile marine has been as 
remarkable as the growth of her fighting navy. She has taken 
over a large number of its best vessels to act as transports. It 
is impossible to exaggerate the value of such service to a state 
which must attack its foe with armies sent across the seas. 
Perhaps it was the consciousness of this which caused Russia to 
cut down her days of grace to a minimum. The incident should 
be a warning to us of what we may expect if we should be en- 
gaged in war with a maritime power. In this matter, when bel- 
ligerents are bound by no definite rules of universal acceptance, 
they will naturally consult their own interests, though we may 
hope that cases will sometimes occur in which other considera- 
tions will be present to their minds. A power which sees a 
chance of striking a severe blow at its enemy's trade by cutting 






CASE OF THE PANAMA. 57 

time nearly all vessels aside from sailing vessels are easily 
converted to some war use. A belligerent having or re- 
ceiving in its ports such vessels of the opponent would 
be using only reasonable precaution in making sure that 
they should not go forth to his injury. Still more neces- 
sary would it be to provide for cases of vessels subsidized 
or otherwise wholly or partly controlled bv the enemy's 
government. That such vessels are liable to treatment 
as war vessels is shown in the decision of the Supreme 
Court of the United States in 1900 in the case of the 
P anemia. The resume of the case as given by the court 
is as follow^ : 

The Panama was a .steamship of 1.432 tons register, carrying a 
crew of 71 men all told, owned by a Spanish corporation, sailing 
under the Spanish flag, having a commission as a royal mail ship 
from the Government of Spain, and plying from and to Xew York 
and Havana and various Mexican ports, with general cargoes, 
passengers, and mails. At the time of her capture, she was on a 
voyage from Xew York to Havana, and had on board two breech- 
loading Hontoria guns of 9-centimeter bore, one mounted on each 
side of the ship, one Maxim rapid-firing gun on the bridge, 20 
Eemington rifles and 10 Mauser rifles, with ammunition for all 
the guns and rifles, and 30 or 10 cutlasses. The guns had been 
put on board three years before, and the small arms and ammuni- 
tion had been on board a year or more. Her whole armament 
had been put on board by the company in compliance with its 
mail contract with the Spanish Government (made more than 
eleven years before and still in force), which specifically re- 
quired every mail steamship of the company to " take on board, 
for her own defense." such an armament, with the exception of 
the Maxim gun and the Mauser rifles. 

That contract contains many provisions looking to the use of 
the company's steamships by the Spanish Government as vessels 
of war. Among other things, it requires that each vessel shall 
have the capacity to carry 500 enlisted men ; that that Govern- 
ment, upon inspection of her plans as prepared for commercial 
and postal purposes, may order her deck and sides to be strength- 
ened so as to support additional artillery: and that, in case of 
the suspension of the mail service by a naval war, or by hostilities 
in any of the seas or ports visited by the company's vessels, the 
Government may take possession of them with their equipment 
and supplies, at a valuation to be made by a commission ; and 
shall, at the termination of the war return them to the com- 
pany, paying 5 per cent on the valuation while it has them in 
its service, as well as an indemnity for any diminution in their 
value. 



58 DAYS OF GRACE. 

The Panama was not a neutral vessel, but she was enemy 
property, and as such, even if she carried no arms (either as part 
of her equipment or as cargo), would be liable to capture, unless 
protected by the President's proclamation. 

It may be assumed that a primary object of her armament, 
and, in time of peace, its only object, was for purposes of de- 
fense. But that armament was not of itself inconsiderable, as 
appears, not only from the undisputed facts of the case, but from 
the action of the district court, upon the application of the com- 
modore commanding at the port where the court was held, and 
on the recommendation of the prize commissioners, directing her 
arms and ammunition to be delivered to the commodore for the 
use of the Navy Department. And the contract of her owner 
with the Spanish Government, pursuant to which the armament 
had been put on board, expressly provided that,* in case of war, 
that Government might take possession of the vessel with her 
equipment, increase her armament, and use her as a war vessel ; 
and, in these and other provisions, evidently contemplated her use 
for hostile purposes in time of war. 

She was, then, enemy property, bound for an enemy port, car- 
rying an armament susceptible of use for hostile purposes, and 
herself liable, upon arrival in that port, to be appropriated by 
the enemy to such purposes. 

The intent of the fourth clause of the President's proclamation 
was to exempt for a time from capture peaceful commercial ves- 
sels ; not to assist the enemy in obtaining weapons of war. This 
clause exempts "Spanish merchant vessels" only ; and expressly 
declares that it shall not apply to " Spanish vessels having on 
board any officer in the military or naval service of the enemy, 
or any coal (except such as may be necessary for their voyage) 
or any other article prohibited or contraband of war, or any dis- 
patch of or to the Spanish Government." 

Upon full consideration of this case, this court is of opinion 
that the proclamation, expressly declaring that the exemption 
shall not apply to any Spanish vessel having on board any article 
prohibited or contraband of war, or a single military or naval 
officer, or even a dispatch, of the enemy, can not reasonably be 
construed as including, in the description of "Spanish merchant 
vessels" which are to be temporarily exempt from capture, a 
Spanish vessel owned by a subject of the enemy ; having an arma- 
ment fit for hostile use ; intended, in the event of war, to be used 
as a war vessel ; destined to a port of the enemy; and liable, on 
arriving there, to be taken possession of by the enemy, and em- 
ployed as an auxiliary cruiser of the enemy's navy, in the war 
with this country. 

The result is, that the Panama was lawfully captured and con- 
demned, and that the decree of the district court must be affirmed. 
(176 U. S. Supreme Court Eeports, 535.) 



RULE OF INSTITUTE OF INTERNATIONAL LAW. 59 

From the decision of the court it is evident that vessels 
liable to be employed as auxiliary cruisers and under con- 
tract with the enemy government are liable to treatment 
as war vessels . The presence of a contract may not, how- i^^x/ 
ever, materially alter the actual results, as a vessel of such 
character as may be readily converted into a vessel of use 
in war may on arriving in its own country be appropriated 
by its government for such use. If such vessels of one bel- 
ligerent are to be allowed to leave the ports of the other 
there must be therefore some agreement which shall be 
binding on the two belligerents under which they shall be 
allowed to leave. The essential part of such agreement 
would be that they should not be used for warlike pur- 
poses if allowed to depart. The aim of the regulation is 
not to interfere with commerce but to prevent the increase 
of the war resources of the enemy, thus giving to com- 
merce greater freedom without introducing complications 
consequent upon the possession of a doubtful character by 
the vessel. 

Lieutenant Bellairs, writing from a British point of 
view, in August, 1905, says of Great Britain : 

In any case, she has considerable reasons for extending the 
period of grace for merchant vessels after the declaration of 
war, as was done by the United States in the war with Spain. 
A special exception would have to be made in the case of enemy's 
vessels suitable for war purposes as mercantile cruisers. A good 
example is not enough, for neither Russia nor Japan has followed 
the United States in the present war. There is no reason under 
international law at present why British vessels on the sea, or in 
her opponent's ports when war breaks out, should obtain any 
days of grace whatever. The contention might be advanced that 
every vessel is suitable for collier, transport, or some form of 
auxiliary for war purposes. (181 North American Review, p. 
170.) 

Rule of Institute of International Law— At the session 
of the Institute of International Law in 1898 the follow- 
ing rule was adopted : 

Art. 40. Les navires de commerce qui, au debut des hostilites 
ou hors de la declaration de guerre, se trouvent dans un port en- 
nemi, ne sont pas sujets a saisie, dans le delai determine par les 
autorites. Pendant ce delai ils peuvent y decharger leur car- 
gaison et en prendre une autre. (Annuaire, 1898, p. 284.) 



60 DAYS OF GRACE. 

Conditions modifying restrictions. — Certain proclama- 
tions have allowed longer or shorter periods to the enemy 
merchant vessels according as they sailed from remote 
or from neighboring ports. Sometimes allowance has 
been made according to the character of the vessel, a 
longer time for sailing vessels and a shorter time for 
steam vessels. 

At the present time it is evident that the object of war 
is not the destruction of private property on land or sea. 
The restriction of the movements of commerce particu- 
larly to and from its own ports may be a greater damage 
to a belligerent thus acting than to the opposing bellig- 
erent. There seems to be no sufficient reason why the 
innocent trade between states that may possibly be at war 
should be destroyed a long time before war actually exists 
simply because merchants anticipate seizure of vessels 
immediately on the outbreak of hostilities. It would seem 
better for both belligerents that the effects of the war 
should so far as possible be confined to the period of the 
war. In order that this may be accomplished there must 
be reasonable assurance that vessels sailing on commer- 
cial undertakings before the outbreak of war will be 
allowed to complete their undertakings so far as these do 
not interfere with the conduct of the war. It would not 
be reasonable to demand that a vessel be permitted to sail 
with a permit to enter a blockaded port merely because 
the original plan of the voyage had contemplated such a 
course. It would not be necessary to allow a vessel to 
load with contraband because this had been the cargo 
which she had originally planned to take. It would not 
be necessary to allow a sojourn of a period which the 
vessel had originally in the schedule of its voyage. Rea- 
sonable treatment of such character as would not affect 
the conduct of the hostilities should be accorded. Such a 
course seems to be in harmony with recent practice. It 
can safely be said that ordinaiw merchant vessels of one 
belligerent in the port of the other belligerent at the out- 
break of war should be allowed time to load and depart. 

Vessels of one belligerent bound for or within the ports 
of the other belligerent may be of different classes. 






•" 



CONDITIONS MODIFYING RESTRICTIONS. 61 

Public vessels adapted for warlike purposes would 
hardly be allowed to leave port. Of course such vessels! 
would rarely be in an enemy port at the outbreak of war. 

Public vessels engaged in purely philanthropic or scien- 
tific undertakings would be permitted to depart. Such L^ 
vessels would include hospital ships and ships engaged in 
exploration. 

It is now becoming very difficult to determine exactly P 
what constitutes a merchant vessel, but if there is satis- 
factory evidence that a private vessel of a belligerent is 
a merchant vessel then she should be allowed the fullest 
freedom consistent with military expediency. Many rea- 
sons might make it necessary to delay or altogether pre- 
vent the departure of such a vessel, e. g., if the vessel were 
in a port used as a base of military operations which it 
was deemed necessary to keep secret, or if the merchant- 
man might naturally be supposed to have obtained mili- 
tary information which should not be disclosed to the 
enemy, even though no guilt might attach to the mer- 
chantman. 

The movement of yachts, pleasure vessels, and other 
new forms of transportation may need to be regulated as 
well as those of merchant vessels. It is therefore neces- 
sary that the regulations be more general than heretofore 
and be made to apply to private vessels in distinction 
from public vessels; yachts and pleasure vessels ordi- 
narily need little time for loading necessary supplies and 
departure. The sojourn of such vessels may have all the 
consequences of the sojourn of a merchant vessel. 

It seems to be evident that it might be necessary or 
expedient to deny the right to depart to certain vessels, 
possibly to seize and hold some, and to regulate the move- 
ments of all, because even though a hospital ship might 
be innocent in character its crew might possess such 
knowledge of a belligerent's plans as to make it necessary 
to detain the ship for a time. 

Summary. — From the above discussion it would seem 
proper to draw certain conclusions in regard to the treat- 
ment of vessels of one belligerent bound for or within the 
port of the other belligerent. 



62 DAYS OF GRACE. 

(a) Under supervision of government exercising juris- 
diction over the port, a reasonable and limited period 
should be allowed for innocent enemy vessels to depart. 

(b) This period will vary according as the government 
may deem expedient. 

(c) The period should be determined by the govern- 
ment giving due consideration to the rights of commerce 
and to military necessities. 

(d) Vessels which are by nature closely connected with 
the military service of the other belligerent may be de- 
tained or seized. 

(e) Vessels of a character easily converted into vessels 
of use in war may be detained or placed under guarantee 
not to enter military service. 

The regulations which would bring about the proper 
practice in regard to the days of grace allowed to vessels 
of one belligerent bound for or within the port of the 
other belligerent at the outbreak of war apparently can 
not fix a definite number of days because of the varying 
conditions under which war may arise and the uncertainty 
which frequently prevails as to the date of its commence- 
ment. The government having jurisdiction over the port 
alone can establish the regulations for its use. Not all 
classes of vessels are entitled to the same exemptions from 
capture on the high seas or to the same exemptions in 
the ports of the other belligerent. Some period should be 
allowed for innocent belligerent vessels to load and depart 
from opponent's ports after war has begun. There should 
be an international agreement upon the principles in ac- 
cord Avith which governments should act, as there has been 
so great diversity in practice hitherto that the burden of 
Avar has been made unnecessarily heavy in many instances. 
The burden thus placed on commerce does not affect bel- 
ligerents alone, but in case of Avar between two or more 
great poAAers aa-ouIcI rest upon other states not parties to 
the contest, Avhich is manifestly unjust and leads to 
unfortunate complications and sometimes to attempts to 
make up by burdensome measures for losses sustained. 

The time allowed for loading and departure of a private 
vessel. of one belligerent in the port of the other belligerent 






SUMMARY. 63 

at the outbreak of war has varied greatly according to 
circumstances. Six weeks were allowed in certain cases 
in the Crimean war. Thirty days were allowed by the 
United States in the Spanish-American war and five 
days by Spain. In the Russo-Japanese war, Russia al- 
lowed forty-eight hours from the local publication of the 
' V_ Russian decree ; Japan allowed seven days from February 
,_ 9, 1901. v It seems to be evident that there is no uniform 
practice in regard to the period to be allowed. Further, 
the conditions and circumstances of different wars are so 
varied that any period which might be fixed for all 
wars would be too long in case of certain wars and too 
short in case of others. New methods and means of war- 
fare would need consideration from time to time, as would 
also new developments in commerce. It would therefore 
seem impossible to fix upon any exact period which should 
be allowed in all cases. 

One state may regard it as of advantage to itself to 
allow a short period for loading and departure even after 
another state has allowed a longer period. The state 
allowing the longer period should be permitted to take 
such action as would not make its liberality a cause of 
injury to itself. Accordingly it must be permitted to 
reduce the period to that of the other belligerent. 

There are in addition to merchant vessels many other 
innocent vessels which are not merchant vessels which 
may belong to one belligerent and be in the ports of the 
other at the outbreak of war. Such a vessel as a private 
yacht is of this class. It may be as necessary to regulate 
the sojourn and general conduct of a yacht as of a mer- 
chant vessel. The regulation therefore should be general 
to apply to all innocent private vessels. 

There may be special military reasons making it im- 
portant that vessels in a belligerent port shall not have 
unlimited freedom. It would not be reasonable to expect 
that in time of war the freedom in all respects w T ould not 
be much more restricted than in time of peace. Certain 
ports from military reasons may be closed or enemy ves- 
sels may be sent out if deemed expedient. The course in 
such matters must be left to each state to determine. 



G4: DAYS Or GRACE. 

Many private vessels may easily be adapted for use in 
war. It would hardly seem reasonable to allow such a 
vessel to return to a home port where it might be seized 
or turned over for war use. Such a vessel belonging to 
one belligerent and being within the jurisdiction of the 
other is liable to such reasonable treatment as the bel- 
ligerent having authority over the vessel may determine, 
provided it is not contrary to the principles of interna- 
tional law. Certainly such a vessel should not be alloAved 
to depart to strengthen the war resources of the enemy. 
It would be reasonable to detain such a vessel if its inno- 
cent use could not be guaranteed. 

As it is not the purpose to interfere with commerce but 
merely to guard against the increase of the war resources 
of the enemy, it would be sufficient to bring about an 
agreement which would guarantee the belligerent in whose 
ports the vessel may be against any war use of the vessel 
if it should be allowed to depart. A guaranty of this 
kind would not interfere with commerce and would give 
to the belligerent desirous of extending liberal treatment 
to his opponent security against the abuse of his liberality. 

To bring about fair treatment of merchant vessels of 
one belligerent by the authorities of the other belligerent 
and at the same time to prevent the use of such vessels 
for hostile purposes the following regulations are sug- 
gested : 

Conclusion. — 1. Each state entering upon a war shall 
announce a date before which enemy vessels bound for or 
within its ports at the outbreak of war shall under ordi- 
nary conditions be allowed to enter, to discharge cargo, 
to load cargo and to depart, without liability to capture 
while sailing directly to a permitted destination. If one 
belligerent state allows a shorter period than the other, 
the other state may, as a matter of right, reduce its period 
to correspond therewith. 

2. Each belligerent state may make such regulations in 
regard to sojourn, conduct, cargo, destination, and move- 
ments after departure of the innocent enemy vessels as 
may be deemed necessary to protect its military interests. 



CONCLUSION. 65 

3. A private vessel suitable for warlike use, belonging 
to one belligerent and bound for or within ports of the 
other belligerent at the outbreak of war, is liable to be 
detained unless the government of the vessel's flag makes 
a satisfactory agreement that it shall not be put to any 
warlike use, in which case it may be accorded the same 
treatment as innocent enemy vessels. 

18949 5 



X 



Topic IV. 

What regulations should be made in regard to the sup- 
plying of fuel or oil to belligerent vessels in neutral ports ? 

CONCLUSION. 

The supply of fuel or oil within a neutral port to ves- 
sels in belligerent service in no case shall exceed what is 
necessary to make the total amount on board sufficient to 
reach the nearest unblockaded port of the belligerent ves- 
sel's own state or some nearer named destination. 

The supply may be subject to such other regulations as 
the neutral may deem expedient. 

DISCUSSION AND NOTES. 

Early ideas of neutral obligations. — -Grotiu s, writing in 
J.G25. in his brief reference to neutrality, lays down the 
principle that — 

It is the duty of those who have no part in the war to do 
nothing which may favor the party having* an unjust cause, or 
which may hinder the action of the one waging a just war, 
* * * and in a case of doubt to treat both belligerents alike, 
in permitting transit, in furnishing provisions to the troops, in 
refraining from assisting the besieged. (De Jure Belli ac Pacis, 
Lib.sIII. C. XVI, iii, 1.) 

Gustavus Adolphus said to George Frederick, Elector 

of Brandenburg: 

What sort of a thing is that — neutrality? I do not understand 
it. There is no such thing. 

This shows only the beginning of the idea of neutrality, 
which was hardly regarded as a theoretical possibility in 
the seventeenth century. Gradually the idea became clear. 
Tn 1737 .Bynlvershoek gave the clue to the correct principle 
when he departed from the idea of impartiality and 
enunciated the principle of absence of participation by 
the neutral in the hostilities. He said : 

I call those non hostes who are of neither party. 

(66) 



GROWING RECOGNITION OF NEUTRAL OBLIGATIONS. 67 

In 1793 the attempt of M. Genet to fit out privateers 
in the United States, supposed to be neutral in the war 
between France and Great Britain, showed the United 
States the folly of a treaty which might place the state in 
a doubtful position in time of Avar. 

Neutrality in the sense in which it is now understood is 
largely a doctrine of the nineteenth century, and many of 
the ideas now coirimonly advanced date from about the 
middle of that century. Ortolan, writing at about this 
time, says : 

In default of treaty stipulations neutral ports and waters are 
an asylum open to the ships of the belligerent, especially if they 
appear in limited numbers ; they are admitted to procure neces- 
sary provisions, and to make repairs which are essential to 
enable them again to put to sea and resume the operations of 
war, without any violations of its duties on the part of the 
neutral state. 

Growing recognition of neutral obligations. — The decla- 
ration of Paris of 1856 did not clear up such points as are 
involved in supplying fuel to a belligerent vessel in a 
neutral port. Gradually circumstances, particularly the 
introduction of steam vessels, forced neutral states to make 
regulations in regard to the use of their ports by bel- 
ligerent vessels. Neutral states had come to recognize 
that they had the right of control over belligerent vessels 
in their ports, and if they had the right they were begin- 
ning to realize that it carried a corresponding obligation. 
During the civil war in the United States the foreign 
nations began to emphasize the rule of twenty-four hour 
sojourn for belligerent ships in neutral ports. The procla- 
mation of President Grant during the Franco-Prussian 
war in 1870 speaks of the "respective rights and obliga- 
tions of the belligerent parties and of the citizens of the 
United States.-' and of the possibility "that armed cruisers 
of the belligerents may be tempted to abuse the hospitality 
accorded to them in the ports" of the United States. It 
then prescribes with much detail what may not be done by 
a belligerent vessel in United States ports. (This procla- 
i mation and references to precedents and opinions may be 
found in International Law Situations. Naval War Col- 
lege, 1904. pp. 63-78.) The decision and award on the 



68 SUPPLIES FOR BELLIGERENT VESSELS. 

Al abam a claims still further defined neutral rights and 
obligations. After citing decisions, etc., in regard to con- 
trol of belligerent vessels in neutral ports, it is said in 
the Discussions of International Law Situations in 1904 
that— 

Thus it is seen that the decision of the courts, proclamations, 
domestic laws, and regulations alike agree upon the growing 
tendency to prescribe more and more definitely the exact range 
of action which may be permitted to a belligerent war vessel in 
a neutral port. In no case is there a doubt that the neutral 
state has a right to make regulations upon this subject. The 
proclamations of neutrality issued in recent wars also show a 
tendency to become explicit in outlining belligerent rights in 
neutral ports. This has been particularly the case since the 
civil war in the United States and the adjustment of the Alabama 
claims. (P. 71.) 

In the first year of the United States civil war the 
tendency was toward a somewhat liberal policy in regard 
to the supply of coal. In 1862, however, Lord John Rus- 
sell limited the amount of coal to be supplied to belliger- 
ent vessels in British ports to so much only "as may be 
sufficient to carry such vessel to the nearest port of her 
own country, or to some nearer destination." The British 
proclamations of 1870, 1885, and 1898 were in the same 
words. That of February 10, 1904, made the last clause 
to read "or to some nearer named neutral destination." 

In the case of the Burton and Pinkerton (Court of Ex- 
chequer, June 4, 1867, 2 Law Reports, 340) the headnote 
states that — 

To serve on board a vessel used as a storeship in aid of a bel- 
ligerent, the fitting out of which to be so used is an offense 
within the 59 Geo. 3, c. 69, is a serving on board a vessel for a 
warlike purpose in aid of a foreign state within s. 2 of that act. 

The United States proclamation of 1870 stated that the 
authorities were to require belligerent vessels to put to sea 
"as soon as possible after the expiration of such period of 
twenty-four hours, without permitting her to take in sup- 
plies beyond what may be necessary for her immediate 
use." The same words were used in the proclamation of 
February 11, 1904. 



V 



NEUTRAL OBLIGATIONS AND GENEVA ARBITRATION. 69 

Recognition of neutral obligations in the Geneva arb i z 
tration. — The decision of the Geneva tribunal maintained 
that — 

in order to impart to any supplies of coal a character inconsistent 
with the second rule, prohibiting the use of neutral ports or 
waters, as a base of naval operations for a belligerent, it is 
necessary that the said supplies should be connected with special 
circumstances of time, of persons, or of place, which may com- 
bine to give them such character. (4 Papers Eelating to the 
Treaty of Washington, p. 50.) 

In the opinion of Count Sclopis before the Geneva arbi- 
tration the question of the supply of coal was raised. He 
said : 

I can only treat the question of the supply and shipment of 
coal as connected with the use of a base of naval operations 
directed against one of the belligerents, or a flagrant case of 
contraband of war.. — ■ 

I will not say that the simple fact of having allowed a greater 
amount of coal than was necessary to enable a vessel to reach 
the nearest port of its country constitutes in itself a sufficient 
grievance to call for an indemnity. As the Lord Chancellor of 
England said on the 12th of June, 1871, in the House of Lords, 
England and the United States equally hold the principle that 
it is no violation of international law to furnish arms to a bel- 
ligerent. But if an excessive supply of coal is connected with 
other circumstances which show that it was used as a veritable 
res hostilis then there is an infringement on the second rule of 
Article VI of the treaty. (4 Papers Relating to the Treaty of 
Washington, p. 74.) 

Mr. Adams argues as follows: 

This question of coals was little considered by writers on the 
law of nations and by sovereign powers until the present century. 
It has become one of the first importance, now that the motive 
power of all vessels is so greatly enhanced by it. 

The effect of this application of steam power has changed the 
character of war on the ocean, and invested with a greatly pre- 
ponderant force those nations which possess most largely the 
best material for it within their own territories and the greatest 
number of maritime places over the globe where deposits may be 
conveniently provided for their use. 

It is needless to point out the superiority in this respect of the 
position of Great Britain. There seems no way of discussing the 
question other than through this example. 

Just in proportion to these advantages is the responsibilty of 
that country when holding the situation of a neutral in time of 
war. 



70 SUPPLIES FOR BELLIGERENT VESSELS. 

The safest course in any critical emergency would be to deny 
altogether to supply the vessels of any of the belligerents, except 
perhaps in positive distress. 

But such a policy would not fail to be regarded as selfish, illib- 
eral, and unkind by all belligerents. It would inevitably lead 
to the acquisition and establishment of similar positions for 
themselves by other maritime powers, to be guarded with equal 
exclusiveness, and entailing upon them enormous and continual 
expenses to provide against rare emergencies. 

It is not therefore either just or in the interest of other powers, 
by exacting severe responsibilities of Great Britain in time of 
war, to force her either to deny all supplies or, as a lighter risk, 
to engage herself in war. 

It is in this sense that I approach the arguments that have 
been presented in regard to the supply of coals given by Great 
Britain to the insurgent American steamers as forming a base 
of operations. 

It must be noted that, throughout the war of four years, 
supplies of coal were furnished liberally at first and more scantily 
afterwards, but still indiscriminately, to both belligerents. 

The difficulty is obvious how to distinguish those cases of 
coals, given to either of the parties as helping them impartially 
to other ports, from those furnished as a base of hostile 
operations. 

Unquestionably, Commo^qre^jXIlkes, in the VanderMlt, was very ->7 
much aided in continuing his cruise at sea by the supplies ob- 
tained from British sources. Is this to be construed as getting 
a base of operations? 

It is plain that a line must be drawn somewhere, or else no 
neutral power will consent to furnish supplies to any belligerent 
whatever in time of war. 

So far as I am able to find my way out of this dilemma, it is 
in this wise : 

The supply of coals to a belligerent involves no responsibility 
to the neutral, when it is made in response to a demand pre- 
sented in good faith, with a single object of satisfying a legiti- 
mate purpose openly assigned. 

On the other hand, the same supply does involve a responsibil- 
ity if it shall in any way be made to appear that the concession 
was made, either tacitly or by agreement, with a view to promote 
or complete the execution of a hostile act. 

Hence I perceive no other way to determine the degree of the 
responsibility of a neutral in these cases than by an examination 
of the evidence to show the intent of the grant in any specific 
case. Fraud or falsehood in such a case poisons everything it 
touches. Even indifference may degenerate into willful negli- 
gence, and that will impose a burden of proof to excuse it before 
responsibility can be relieved. 



NEUTRAL OBLIGATIONS AND GENEVA ARBITRATION. 71 

This is the rule I have endeavored to apply in judging the 
nature of the cases complained of in the course of arbitration. 
(Ibid, p. 148.) 

Sir Alexander Cockburn presented the British views, as 
follows : 

But a novel and, to my mind, most extraordinary proposition 
is now put forward, namely, that if a belligerent ship is allowed 
to take coal, and then to go on its business as a ship of war, this 
is to make the port from which the coal is procured " a base of 
naval operations," so as to come within the prohibition of the 
second rule of the treaty of Washington. 

We have here another instance of an attempt to force the 
words of the treaty to a meaning which they were never — at 
least so far as one of the contracting parties is concerned — 
intended to bear. It would be absurd to suppose that the British 
Government, in assenting to the rule as laid down, intended to 
admit that whenever a ship of war had taken in coal at a British 
port, aud then gone to sea again as a war vessel, a liability for 
all the mischief done by her should ensue. Nor can I believe the 
United States Government had any such arriere pensee in fram- 
ing the rule ; as, if such had been the case, it is impossible to 
suppose that they woiild not have distinctly informed the British 
Government of the extended application they propose to give to 
the rule. 

The rule of international law, that a belligerent shall not make 
neutral territory the base of hostile operations, is founded on 
the principle that the neutral territory is inviolable by the bel- 
ligerent, and that it is the duty of the neutral not to allow his ter- 
ritory to be used by one belligerent as a starting point for opera- 
tions against the other. This is nowhere better explained, as 
regards ships of war, than by M. Ortolan, in the following 
passage : 

" Le principe general de l'inviolabilite du territoire neutre 
exige aussi que l'emploi de ce territoire reste franc de toute 
mesure ou moyen de guerre de l'un des belligerants contre l'autre. 
C'est une obligation pour chacun des belligerants de s'en abste- 
nir ; c'est aussi un devoir pour l'etat neutre d'exiger cette absten- 
tion ; et c'est aussi pour lui un devoir d'y veiller et d'en maintenir 
l'observation a l'encontre de qui que ce soit. Ainsi il appartient 
a l'autorite qui commande dans les lieux neutres, ou des navires 
belligerants, soit de guerre, soit de commerce, ont ete recus de 
prendre des mesures necessaires pour que l'asile accorde ne 
tourne pas en machination hostile contre l'un des belligerants ; 
pour empecher specialement qu'il ne devienne un lieu d'ou les 
batiments de guerre ou les corsaires surveillent les navires enne- 
mis pour les poursuivre et les combattre, et les capturer lorsqu'ils 
seront parvenus au-dela de la mer territoriale. Une de ces 



72 -l PPLIES FOR BELLIGERENT VESSELS. 

mesures consiste a empecher la sortie simultanee des navires 
appartenant a des puissances ennemies l'une de l'autre." 

It must be, I think, plain that the words " base of operations " 
must be accepted in their ordinary and accustomed sense, as they 
have hitherto been understood, both in common parlance and 
among authors who have written on international law. Now, 
the term " base of warlike operations " is a military term, aud 
has a well-known sense. It signifies a local position which serves 
as a point of departure and return in military operations, and 
with which a constant connection and communication can be kept 
up, and which may be fallen back upon whenever necessary. In 
naval warfare it would mean something analogous — a port or 
water from which a fleet or a ship of war might watch the enemy 
and sally forth to attack him, with the possibility of falling back 
upon the port or water in question, for fresh supplies, or shelter, 
or a renewal of operations. (Ibid, p. 422.) 

Proclamations in regard to use of neutral ports. — The 
Kussian declaration of April 20 (May 2), 1898, during 
the Spanish- American war stated — 

The Imperial Government further declares that the ships of 
war of the two belligerent powers may only enter Russian ports 
for twenty-four hours. In case of stress of weather, absence of 
goods or provisions necessary to the maintenance of the crew, or 
for indispensable repairs, the prolongation of the above-men- 
tioned time can only be accorded by special authorization of the 
Imperial Government. (Foreign Relations, U. S., 1898, p. 897.) 

One of the most detailed prescriptions in regard to the 

treatment of belligerent ships in neutral ports is contained 

in the Brazilian proclamation of April 29, 1898, which 

was reaffirmed in 1904 : 

VII. 

Privateers, although they do not conduct prizes, shall not be 
admitted to the ports of the Republic for more than twenty-four 
hours, except in cases indicated in the preceding section. 

VIII. 

No ship with the flag of one of the belligerents, employed in 
the war, or destined for the same, may be provisioned, equipped, 
or armed in the ports of the Republic, the furnishing of victuals 
and naval stores which it may absolutely need and the things 
indispensable for the continuation of its voyage not being in- 
cluded in the prohibition. 

IX. 

The last provision of the preceding section presupposes that 
the ship is bound for a certain port, and that it is only en route 



PROCLAMATIONS AS TO NEUTRAL PORTS. 73 

and puts into a porfc of the Republic through stress of circum- 
stances. This, moreover, will not be considered as verified if 
the same ship tries the same port repeated times, or after having 
been relieved in one port should subsequently enter another, 
under the same pretext, except in proven cases of compelling 
circumstances. Therefore, repeated visits without a sufficiently 
justified motive would authorize the suspicion that the ship is 
not really en route, but is frequenting the seas near Brazil in 
order to make prizes of hostile ships. In such cases asylum or 
succor given to a ship would be characterized as assistance or 
favor against the other belligerent, being thus a breach of 
neutrality. 

Therefore, a ship which shall once have entered one of our ports 
shall not be received in that or another shortly after having left 
the first, in order to take victuals, naval stores, or make repairs, 
except in a duly proved case of compelling circumstances, unless 
after a reasonable interval which would make it seem probable 
that the ship had left the coast of Brazil and had returned after 
having finished the voyage she was undertaking. 

X. 

The movements of the belligerent will be under the supervi- 
sion of the custom authorities from the time of entrance until 
the departure, for the purpose of verifying the proper character 
of the things put on board. 

XI. 

The ships of belligerents shall take material for combustion 
only for the continuance of their voyage. 

Furnishing coal to ships which sail the seas near Brazil for 
the purpose of making prizes of an enemy's vessels or prosecu- 
ting any other kind of hostile operations is prohibited. 

A ship which shall have once received material for combustion 
in our ports shall not be allowed a new supply there, unless there 
shall have elapsed a reasonable interval which makes -it probable 
that said ship has returned after having finished its voyage to a 
foreign port. 

XII. 

It will not be permitted to either of the belligerents to re- 
ceive in the ports of the Republic goods coming directly for 
them in the ships of any nation whatever. 

This means that the belligerents may not seek ports en route 
and on account of an unforseen necessity, while having the in- 
tention of remaining in the vicinity of the coasts of Brazil, 
taking thus beforehand the necessary precautions to furnish 
themselves with the means of continuing their enterprises. 
The tolerance of such an abuse would be equivalent to allowing 



74 SUPPLIES FOR BELLIGERENT VESSELS. 

our ports to stive as a base of operations for the belligerents. 
(Foreign Relations, U. S., 1898, p. 847.) 

The Belgian royal decree of February 18, 1901, gives 
quite full statement of its policy : 

Art. XIII. In no case shall vessels of war or privateers of a 
nation engaged in a maritime war be furnished with supplies or 
means of repairs in excess of what is indispensable to reach the 
nearest port of their country, or of a nation allied to theirs in 
the war. The same vessel may not, unless specially authorized, 
be provided with coal a second time until the expiration of three 
months after a first coaling in a Belgian port. 

Art. XIV. The vessels specified in the preceding article may 
not, with the aid of supplies taken in Belgian territory, increase 
in any way their war material nor strengthen their crews, nor 
make enlistments even among their own countrymen, nor exe- 
cute, under the pretext of repairs, works of a nature to augment 
their military efficiency, nor land for the purpose of forwarding 
to their homes, by land routes, men, sailors, or soldiers happen- 
ing to be on board. 

Art. XV. They must abstain from any act intended to con- 
vert their place of refuge into a base of operation in any way 
whatever against their enemies, and also from any investigation 
into the resources, forces, or location of their enemies. 

Other proclamations vary in stringency. The Danish, 
proclamation of April 27, 1904, states: 

So much coal only may be taken in as may be necessary to 
carry such vessels to the nearest nonblockaded home port, or, 
with permission from the proper Danish authorities, to some 
other neutral destination. No ship will be permitted, without 
special authorization, to coal in any Danish harbor or roadstead 
more than once in the course of three months. (Foreign Re- 
lations, U. S., 1904, par. 2, sec. 2, p. 22.) 

The D anish proclamation of April 27, 1904, also pro- 
vides : 

The belligerents are not permitted to maintain coal depots on 
Danish territory. It is forbidden to clear from Danish harbors 
cargoes of coal directly destined for the fleets of the belligerents. 
This injunction does not, however, apply to coal brought from a 
harbor to the outlying roadstead intended to be used in com- 
pliance with the above provisions of paragraph 2, section 2. 
(Par. 5.) 

The Norwegian neutrality decree of April 30, 1904, con- 
tains practically the same provisions in regard to coaling. 



PROCLAMATIONS AS TO NEUTRAL PORTS. 75 

The Egyptian proclamation of February 12, 1901:. re- 
quires from the commander a written statement of the 
destination of the ship and of the amount of coal on board. 

The United States proclamation of February 11, 1904, 
prescribesThat — ~~ 

No ship of war or privateer of either belligerent shall be per- 
mitted, while in any port, harbor, roadstead, or waters within 
the jurisdiction of the United States, to take in any supplies 
except provisions and such other things as may be requisite for 
the subsistence of her crew, and except so much coal only as may 
be sufficient to carry such vessel, if without any sail power, to 
the nearest port of her own countrj' ; or in case the vessel is 
rigged to go under sail, and may also be propelled by steam 
power, then with half the quantity of coal which she would be 
entitled to receive, if dependent upon steam alone, and no coal 
shall be again supplied to any such ship of war or privateer in 
the same or any other port, harbor, roadstead, or waters of the 
United States, without special permission, until after the ex- 
piration of three months from the time when such coal majr have 
been last supplied to her within the waters of the United States, 
unless such ship of war or privateer shall, since last thus sup- 
plied, have entered a port of the government to which she be- 
longs. (Foreign Eelations, U. S., 1904, p. 34.) 

The proclamation of Sweden and Norway, April 30, 
1904, provides as to belligerent vessels, that — 

They are forbidden to obtain any supplies except stores, pro- 
visions, and means for repairs necessary for the subsistence of 
the crew or for the security of navigation. In regard to coal, 
they can only purchase the necessary quantity to reach the nearest 
nonblockaded national port, or, with the consent of the authori- 
ties of the King, a neutral destination. Without special per- 
mission the same vessel will not be permitted to again purchase 
coal in a port or roadstead of Sweden or Norway within three 
months after the last purchase. (Foreign Eelations, U. S., 1904, 
p. 31.) 

It is also forbidden "the belligerent powers to establish 
coal depots on Swedish or Norwegian soil." 

Policy and practice of Great Britain. — Hall says: 

Even during the American civil war ships of war were only 
permitted to be furnished with so much coal in English ports as 
might be sufficient to take them to the nearest port of their own 
country, and were not allowed to receive a second supply in the 
same or any other port, without special permission, until after 
the expiration of three months from the date of receiving such 



76 SUPPLIES FOR BELLIGERENT VESSELS. 

coal. The regulations of the United States in 1870 were similar ; 
no second supply being permitted for three months unless the 
vessel requesting it had put into a European port in the interval. 
There can be little doubt that no neutral states would now ven- 
ture to fall below this measure of care ; and there can be as little 
doubt that their conduct will be as right as it will be prudent. 
When vessels were at the mercy of the winds it was not possible 
to measure with accuracy the supplies which might be furnished 
to them, and as blockades were seldom continuously effective, 
and the nations which carried on distant naval operations were 
all provided with colonies, questions could hardly spring from 
the use of foreign possessions as a source of supplies. Under the 
altered conditions of warfare matters are changed. When sup- 
plies can be meted out in accordance with the necessities of the 
case, to permit more to be obtained than can, in a reasonably 
liberal sense of the word, be called necessary for reaching a place 
of safety, is to provide the belligerent with means of aggressive 
action ; and consequently to violate the essential principles of 
neutrality. (International Law, 5th ed., p. 606.) 

In the time of war it is generally accepted that mer- 
chants of a neutral state will sell to the belligerents articles 
that are regarded as contraband and that neutral vessels 
will carry such goods. The goods are of course liable to 
seizure and the vessels may suffer consequences in propor- 
tion to their guilt if they come within the power of the 
belligerent. Of late years there has been a growing at- 
tempt on the part of the neutral states to prevent subjects 
from engaging in contraband trade. The regulations in 
regard to this matter are not all equally stringent. The 
British neutrality proclamation of February 11, 1904, 
says : ■ — ^ — 

And we hereby further warn and admonish all our loving sub- 
jects, and all persons whatsoever entitled to our protection, to 
observe toward each of the aforesaid powers, their subjects, citi- 
zens, and territories, and toward all belligerents whatsoever with 
whom we are at peace, the duties of neutrality ; and to respect, 
in all and each of them, the exercise of belligerent rights. 

And we hereby further warn all our loving subjects, and all 
persons whatsoever entitled to our protection, that if any of them 
shall presume, in contempt of this our royal proclamation, and of 
our high displeasure, to do any acts in derogation of their duty 
as subjects of a neutral power in a war between other powers, or 
in violation or contravention of the law of nations in that behalf, 
as more especially by breaking or endeavoring to break any 
blockade lawfully and actually established by or on behalf of 



POLICY AND PRACTICE OF GREAT BRITAIN. 77 

either of the said powers, or by carrying- officers, soldiers, dis- 
patches, arms, ammunition, military stores or materials, or any 
article or articles considered and deemed to be contraband of 
war according to the law or modern usages of nations, for the 
use or service of either of the said powers, that all persons so 
offending", together with their ships and goods, will rightfully 
incur and be justly liable to hostile capture and to the penalties 
denounced by the law of nations in that behalf. 

And we do hereby give notice that all our subjects and persons 
entitled to our protection who may misconduct themselves in the 
premises will do so at their peril, and of their own wrong; and 
they will in nowise obtain any protection from us against such 
capture or such penalties as aforesaid, but will, on the contrary, 
incur our high displeasure by such misconduct. 

The British proclamation of neutrality in 1904 further 
prohibits the use by the belligerents of any waters subject 
to the territorial jurisdiction of the British Crown, as a 
station or place of resort for any warlike purpose, or for 
the purpose of obtaining any facilities for warlike equip- 
ment. 

Provision is also made that a belligerent vessel may not 
"take in supplies beyond what may be necessary for her 
immediate use." A belligerent vessel is not permitted 
within British waters "to take in any supplies except pro- 
visions and such other things as may be requisite for the 
subsistence of her crew, and except so much coal only as 
may be sufficient to carry such vessel to the nearest port 
of her own country, or to some nearer named neutral 
destination." No further supply of coal within British 
jurisdiction is allowed till after three months without 
special permission. 

The full statement in regard to the supply of coal is 
contained in Rule 3 of the proclamation, and is as follows : 

Eule 3. No ship of war of either belligerent shall hereafter be 
permitted, while in any such port, roadstead, or waters subject 
to the territorial jurisdiction of His Majesty, to take in any sup- 
plies, except provisions and such other things as may be requisite 
for the subsistence of her crew, and except so much coal only as 
may be sufficient to carry such vessel to the nearest port of her 
own country, or to some nearer named neutral destination., and 
no coal shall again be supplied to any such ship of war in the 
same or any other port, roadstead, or waters subject to the terri- 
torial jurisdiction of His Majesty, without special permission, 
until after the expiration of three months from the time when 



78 SUPPLIES FOE BELLIGERENT VESSELS. 

such coal may have been last supplied to her within British 
waters as aforesaid. 

This rule received a new interpretation by the procla- 
mation of the governor <>l Malta issued on August 12, 
1904. This proclamation states that — 

Whereas in giving the said order we were guided by the prin- 
ciple that belligerent ships of war are admitted into neutral 
ports in view of exigencies of life at sea and the hospitality 
which it is customary to extend to vessels of friendly powers ; 

And whereas this principle does not extend to enable belliger- 
ent ships of war to utilize neutral ports directly for the purpose 
of hostile operations ; 

We, therefore, in the name of His Majesty, order and direct 
that the above-quoted rule No. 3, published by proclamation No. 
1 of the 12th February, 1904, inasmuch as it refers to the ex- 
tent of coal which may be supplied to belligerent ships of war in 
British ports during the present war, shall not be understood as 
having any application in case of a belligerent fleet proceeding 
either to the seat of war or to any position or positions on the 
line of route with the object of intercepting neutral ships on 
suspicion of carrying contraband of war, and that such fleet shall 
not be permitted to make use in any way of any port, roadstead, 
or waters subject to the jurisdiction of His Majesty for the pur- 
pose of coaling, either directly from the shore or from colliers 
accompanying such fleet, whether vessels of such fleet present 
themselves to any such port or roadstead or within the said 
waters at the same time or successively, and second, that the 
same practice shall be pursued with reference to single bellig- 
erent ships of war proceeding for purpose of belligerent opera- 
tions as above denned ; provided that this is not to be applied to 
the case of vessels putting in on account of actual distress at 
sea, in which case the provision of rule No. 3 as published by 
proclamation No. 1 of the 12th February, 1904, shall be applicable. 

It will be observed that this proclamation specifically 
announces the principle "that belligerent ships of war 
are admitted into neutral ports in view of exigencies of 
life at sea and the hospitality which it is customary to 
extend to vessels of friendly powers;" and that "this 
principle does not extend to enable belligerent ships of 
war to utilize neutral ports directly for the purpose of 
hostile operations." It is not the intention to extend hos- 
pitality to belligerent vessels proceeding to the seat of 
war or advancing for the purpose of belligerent opera- 
tions, whether against other belligerents or against neu- 



POLICY AND PRACTICE OF GREAT BRITAIN. 79 

trals carrying contraband or otherwise involved in the 
war. In short, the doctrine would seem to involve the 
privilege of coaling for navigation to a home port, but no 
such privilege in order to reach the area of warfare or for 
direct hostile operations. This position taken by Great 
Britain is an advanced one. As was said in the discus- 
sions of this Naval War College in 11*05 (Topic IX, 
p. 158) : 

It can not reasonably be expected that a neutral power will \ 
permit its own ports to be used as sources of supplies and coal, 
using which the belligerent vessel or fleet may set forth to seize 
the same neutral's commerce or interrupt its trade. 

Professor Holland raises the question of supply of coal 
to a belligerent ship and briefly summarizes the British 
practice' as follows: 

May she also replenish her stock of coal? To ask this question 
may obviously, under modern conditions and under certain cir- 
cumstances, be equivalent to asking whether belligerent ships may 
receive in neutral harbors what will enable them to seek out 
their enemy, and to maneuver while attacking him. It was 
first raised during the American civil war, in the first year of 
which the Duke of Newcastle instructed colonial governors that 
"with respect to the supplying in British jurisdiction of articles 
ancipitis usus (such, for instance, as coal), there is no ground 
for any interference whatever on the part' of colonial authori- 
ties." But, by the following year, the question had been more 
maturely considered, and Lord John Russell directed, on January 
31, 1862, that the ships of war of eiffiier belligerent should be 
supplied with "so much coal only as may be sufficient to carry 
such vessel to the nearest port of her own country, or to some 
nearer destination." Identical language was employed by Great 
Britain in 1870, 1885, and 1898, but in the British instructions of 
February 10, 1904, the last phrase was strengthened so as to 
run : "Or to some nearer named neutral destination." The 
Egyptian proclamation of February 12, 1904, superadds the re- 
quirement of a written declaration by the belligerent com- 
mander as to the destination of his ship and the quantity of coal 
remaining on board of her, and Mr. Balfour, on July 11, informed 
the House of Commons that "directions had been given for re- 
quiring an engagement that any belligerent man-of-war, sup- 
plied with coal to carry her to the nearest port of her own 
nation, would in fact proceed to that port direct." Finally, a 
still stronger step was taken by the Government of this country, 
necessitated by the hostile advance toward eastern waters of the 
Russian Pacific squadron. Instructions were issued to all Brit- 



80 SUPPLIES FOR BELLIGERENT VESSELS. 

ish ports, on August 8, which, reciting that "belligerent ships of 
war are admitted into neutral ports in view of the exigencies of 
life at sea, and the hospitality which is customary to extend to 
vessels of friendly powers ; but the principle does not extend to 
enable belligerent ships of war to utilize neutral ports directly 
for the purpose of hostile operations," goes on to direct that the 
rule previously promulgated, "inasmuch as it refers to the ex- 
tent of coal which may be supplied to belligerent ships of war in 
British ports during the present war, shall not be understood as 
having any application to the case of a belligerent fleet proceed- 
ing either to the seat of war, or to any position or positions on 
the line of route, with the object of intercepting neutral ships 
on suspicion of carrying contraband of war, and that such fleets 
shall not be permitted to make use, in any way, of any port, 
roadstead, or waters, subject to the jurisdiction of His Majesty, 
for the purpose of coaling either directly from the shore or 
from colliers accompanying such fleet, whether vessels of such 
fleet present themselves to such port or roadstead, or within the 
said waters, at the same time or successively ; and that the same 
practice shall be pursued with reference to single belligerent 
ships of war proceeding for the purpose of belligerent opera- 
tions, as above denned, provided that this is not to be applied 
to the case of vessels putting in on account of actual distress at 
sea. (See Parliamentary Paper, Russia, Xo. 1 (1905), p. 15, and 
Malta Government Gazette of August 12, 1904. 83 Fortnightly 
Review, 1905, p. 795.) 

Professor Lawrence says : 

Lord Lansdowne voiced the usual British doctrine with admi- 
rable clearness, when he wrote in February last to a Cardiff 
firm : "Coal is an article ancipitis usus not per se contraband of 
war; but, if destined for warlike as opposed to industrial use, 
it may become contraband." Can we hold this position, and yet 
press for the placing of coal on the same footing as ammuni- 
tion, so far as belligerent men-of-war visiting our territoral 
waters are concerned? No doubt we should be told that if such 
ships are no longer to be allowed to buy coal in our ports, we 
can hardly claim for our merchantmen the right to carry it 
to their ports unmolested, as long as they are not ports of naval 
equipment. And yet this argument does not seem conclusive. 
An article of commerce may be so essential for hostile purposes 
that no warship ought to be supplied with it in neutral water, 
and yet so essential for the ordinary purposes of civil life that 
it ought not to be prevented from reaching the peaceful inhabi- 
tants of belligerent countries. The two propositions are not 
consistent. If both are upheld in reference to coal, we can work 
for the abolition of the present liberty to supply it to combatant 
vessels when visiting neutral ports and harbors, and at the same 



POLICY AND PRACTICE OF FRANCE. 81 

time maintain that when it is sent abroad in the way of ordinary 
trade, belligerents must treat it as conditionally and not abso- 
lutely contraband. But at present, as we have seen (see pp. 129- 
132), there can be no question of complete prohibition. All we 
can hope to gain is a rule which will deny coal in future to war 
vessels when they have broken the conditions on which neutrals 
allowed them to take a supply. Such an advance in strictness 
would in no way conflict with our existing doctrine that coal is 
properly placed among goods conditionally contraband. (War 
and Neutrality in the Far East, 2d ed., p. 160.) 

Policy and practice of France. — The French policy as 
a neutral has been in general to place little restriction 
upon the entrance or sojourn of belligerent vessels within 
its ports. It has been maintained by some French writers 
that it is entirely proper for a belligerent vessel pursued 
by its enemy to seek refuge in a neutral port. 

If the enemy wishes to reduce them to a 'state of impotence, it 
is for him to take the necessary measures to make it dangerous 
for them to leave. ( Dupuis, 181 North American Keview, p. 182.) 

The doctrine that belligerent vessels may stay in a 
neutral port in order to obtain "fresh means of naviga- 
tion," but not to make "any increase of fighting strength," 
is one which easily leads to abuse. It is exceedingly dif- 
ficult to distinguish between the military effects of "fresh 
means of navigation," 'as coal, and a definite "increase in 
fighting strength." One might be of as great advantage 
as the other in actual war. 

Even the supplementary observations issued by the 
French minister of marine in February, 1904, contain 
such provisions as follows: 

En aucun cas, un belligerant ne peut faire usage d'un port 
frangais ou appartenant a un Etat protege dans un but de guerre, 
ou pour s'y approvisionner d'armes ou de munitions de guerre, ou 
pour y execnter, sous pretexte de reparations, des travaux ayant 
pour but d'augmenter sa puissance militaire : 

II ne pent etre fourni a un belligerant que les vivres, denrees, 
approvisionnements et moyens de reparations necessaires a la 
subsistance de son equipage a la securite de sa navigation. 

These clauses and others define more clearly than here- 
tofore the position of France. 

The French regulations in regard to neutrality of Feb- 
ruary 13, 1904, were identical with those issued on April 

18949 6 v 



82 SUPPLIES FOR BELLIGERENT VESSELS. 

27, L898, during the Spanish- American war, and can not 
be said to have been issued with the intention of giving 
to Russia any especially favorable treatment. The regu- 
lations are, however, much less stringent and explicit than 
those issued by the United States and Great Britain. The 
French declaration is as follows: 

The Government of the Republic declares and notifies whomso- 
ever it may concern that it has decided to observe a strict neu- 
trality in the war which has just broken out between Spain and 
the United States. 

It considers it to be its duty to remind Frenchmen residing in 
France, in the colonies and protectorates, and abroad that they 
must refrain from all acts which, committed in violation of 
French or international law, could be considered as hostile to 
one of the parties or as contrary to a scrupulous neutrality. 
They are particularly forbidden to enroll themselves or to take 
service either in the army on land or on board the ships of war of 
one or the other of the belligerents, or to contribute to the 
equipment or armament of a ship of war. 

The Government decides, in addition, that no ship of war of 
either belligerent will be permitted to enter and to remain with 
her prizes in the harbors and anchorages of France, its colonies 
and protectorates, for more than twenty-four hours, except in 
the case of forced delay or justifiable necessity. 

No sale of objects gained from prizes shall take place in the 
said harbors and anchorages. 

Any person disobeying the above restrictions can have no 
claim to the protection of the Government or its agents against 
the acts or measures which the belligerents might exercise or 
decree in accordance with the rules of international law, and 
such persons will be prosecuted, should there be cause, according 
to the laws of the Republic. (Foreign Relations, U. S., 1898, p. 
862.) 

It will be observed that no reference is made to the 
taking of coal in French ports nor to the length of sojourn 
of a belligerent vessel in a French port except when ac- 
companied by prize, when the stay is limited to twenty- 
four hours. The general custom is to limit the stay~6f a 
belligerent vessel to twenty-four hours and to prohibit 
absolutely the entrance of a vessel with prize. 

Professor .Lawrence, comparing the French rules with 
others, and speaking of the British position, says: 

But, taken at their best, French rules require strengthening ; 
and the question for us to consider is whether a further advance 



POLICY AND PRACTICE OF FRANCE. 83 

on our part would be more likely to bring our neighbor into line 
with us, or confirm her in her present position. No doubt our 
interests would be served by complete prohibition, if it could be 
made general ; and for this reason other states may decline to 
follow any lead we may give. As we are better off for coaling 
stations than any other power, and have greater facilities for 
keeping our fleets supplied by colliers, we could not fail to benefit 
by a change which would make men-of-war dependent upon coal 
obtained in their own ports or from their own supply ships. On 
the other hand, we have more to lose than most states by the 
present system. Our sea-borne trade is so enormous and so 
essential to our welfare that an enemy could. do vast damage by 
means of two or three swift and well-handled commerce de- 
stroyers, which might for a time obtain coal in neutral ports, 
though we had succeeded in closing all their own against them. 
Our neighbors are well aware of this ; and they know, in addi- 
tion, that the change, if made, would either greatly restrict their 
operations at sea, or lay upon them the necessity of acquiring 
distant coaling stations. (War and Neutrality in the Far East, 
2d ed., p. 130.) 

In Le Temps, Paris, of May 10 and 11, 1905, there 
are quite full statements of the positions taken by Japan 
and France in regard to the hospitality extended to the 
Russian fleet under Admiral Rojestvensky in French 
ports, the Japanese maintaining that the assistance had 
been of such character as to violate neutral obligations. 
While not questioning the good faith of France, the 
Japanese maintain that the execution of the orders of the 
Government has not been effective. From this fact the 
journey of the Russian fleet has been greatly facilitated 
and this is a reason for complaint, as it was regarded as 
"une aide dans un but de guerre." 

The Japanese note mentions the length of sojourn and 
furnishing of coal and provisions at Dakar, at No ssi-Be ^ 
and in Indo-Chinese waters. The actual conclusions of 
Japan were : 

1. Que sans incriminer la bonne foi du gouvernement frangais 
il estime que ses ordres ont ete executes de f agon insuffisante ; 

2. Que s'il a ete fait droit a ses observations apr&s, il est 
facheux qu'une surveillance plus active n'ait pas permis d'en 
tenir compte avant et de prevenir des actes qu'il tient pour des 
violations de la neutralite. 

The French reply to the Japanese complaint maintains 
that there is no code of international law ; that tne procla- 



84 SUPPLIES FOR BELLIGERENT VESSELS. 

mation issued by France in the Spanish- American war in 
1898 was the same as that issued in 1905 ; that the coaling 
had been done outside territorial waters; that the sojourn 
in the neighborhood of Nossi-Be had not involved any 
violation of neutrality; that Indo-Chinese coasts have not 
served as a base of operations; that Japan had acted in 
the Philippines and Netherland Indies in a manner simi- 
lar to that of Russia in Indo-Chinese waters; that the 
protest of Japan against France would be equally valid 
against Great Britain and the powers, and that in Eng- 
land Lord Lansdowne and Mr. Balfour had expressed 
approval of the attitude taken by France. 
A recent French view T is as follows : 

II y a la, crojons-nous, une exaggeration critiquable au point de 
vue du Droit international et dangereuse au point de vue pratique. 
Depuis que la navigation a, vapeur s'est substitute a la navigation 
a. voiles, le charbon est devenu un agent necessaire a la marche 
des navires ; le f ournir aux belligerants, ce n'est done pas leur 
donner directement le moyen de combattre, mais celui de navi- 
guer, et on ne coniprend pas plus qu'on le leur refuse, qu'on ne 
leur refusait autrefois la toile dont ils avaient besoin pour 
reparer leur voilure. Sinon, la logique comma nderait de defendre 
a un navire belligerant de se ravitailler en vivres, de ne pas 
reparer ses avaries de machine dans un port neutre, car cela 
aussi lui permet de continuer sa navigation tout comme une 
fourniture de charbon. L'Etat neutre ne peut faire lui-meme 
cette fourniture. parce qu'il violerait sa neutrality en mettant a 
la disposition des belligerants les ressources de ses depots de 
charbon qui ne sont pas destines a. la vente, mais a son propre 
service militaire, et qu'il les detournerait ainsi de leur affectation 
normale pour en faire profiter des belligerants. Mais, nous 1'avons 
vu, l'Etat n'a pas a, empecher les actes de commerce faits avec les 
belligerants par les particuliers : ceux-ci vendent leur charbon a 
un navire belligerant comme ils le vendraient a tout batiment 
national ou etranger. (Despagnet, Cours de droit international 
public, 3d ed., p. 812.) ' ' 

General drift tmcard restriction. — The policy of re- 
striction in furnishing coal and other supplies to a bel- 
ligerent war vessel in a neutral port has been in the direc- 
tion of limiting such supplies to those necessary for the 
immediate needs of navigation. While restrictions do 
not in general begin to appear until the period of the 
American civil war, since that time the policy has rapidly 



DRIFT TOWARD RESTRICTION. 85 

spread. By the end of the nineteenth century in the 
Spanish-American war, the policy of restriction had be- 
come common. In the Russo-Japanese war it was very 
general. France was a marEeoT instance of the lack of 
restriction on the supply of coal, though several other 
states made no restrictions. 

The unrestricted supply of coal within a neutral port 
may lead to serious complications and may be greatly to 
the disadvantage of the neutral permitting the act. The 
belligerent thus supplied may use the coal in seeking out 
and making prize of vessels of the neutral which has per- 
mitted the supply to be taken in its ports. The belliger- 
ent may agree not to capture vessels belonging to the 
neutral which allows the coaling, but if it preys on the 
commerce of another neutral the case may be equally dis- 
advantageous. There may be complications between the 
two neutrals in consequence. 

The Unite_d States in June, 1905, took action upon the 
entrance of the Russian Admiral Enquist with his vessels 
into the port of Manila. Secretary Taftxm June 5, 1905, 
sent instructions to Governor Wright at Manila as rol- 
lows : 

Advise Russian admiral that as his ships are suffering from 
damages due to battle, and our policy is to restrict all operations 
of belligerents in neutral ports, the President can not consent to 
any repairs unless the ships are in terned at Manila until the 
close of hostilities. You are directed after notifj'ing the Russian 
admiral in this conclusion, to turn over the execution of this 
order to Admiral Train, who has been advised accordingly, by 
the Secretary of the Navy. 

On the following day the Government gave out the 
account of the matter. 

The Secretary of War is in receipt of a cablegram from Gov- 
ernor Wright announcing that Secretary Taft's instructions of 
yesterday had been formally transmitted to the Russian admiral, 
and at the same time inquiry was made whether he would be 
required to put to sea within twenty-four hours after taking on 
coal and provisions sufficient to take them to the nearest port. 
That up to this time only enough coal and sufficient food supplies 
for use in harbor to last from day to day had been given, as they 
arrived in Manila with practically no coal or provisions. Gov- 
ernor Wright submitted the question as to whether they were 



jil 



86 81 PPLIES FOR BELLIGERENT VESSELS. 

entitled to take on coal and provisions to carry them to the 
nearest port. Governor Wright was advised that the President 
directed that the twenty-four hours limit must be strictly en- 
forced ; that necessary supplies and coal must be taken on within 
that time, these instructions being consistent with those of June 
5, stating that as the Russian admiral's ships were suffering 
from damages due to battle the American policy was to restrict 
all operations of belligerents at neutral ports — in other words, 
that time should not be given for repairs of damages suffered in 
battle. 

JDe Lapradelle entitles an article in 1904 "La nouvelle 
these du refus de charbon anx belligerants dans les eaux 
neutres." 

The proposition to limit the supply to the amount 
necessary to take the ship to the nearest port of her home 
country, which has been a form often used and was that 
approved by the Institute of International Law in 1898, 
leaves much to be desired. The nearest port may not be 
in the direction in which the vessel may be voyaging, or 
if it is it may not be a port suitable for the entrance of 
such a vessel. The gradual change in recent years has 
shown that this formula is not sufficient. Such words as 
the following have been added in certain proclamations: 
"Or to some nearer neutral destination," "or to some nearer 
named neutral destination," or that coal shall not be sup- 
plied to "a belligerent fleet proceeding either to the seat 
of war or to any position or positions on the line of route 
Avith the object of intercepting neutral ships on suspicion 
of carrying contraband of war." 

In most declarations there has been a provision against 
allowing a neutral port to become a base for equipping a 
belligerent's vessel with coal, oil, or other supplies. By 
"base, " as thus used, is meant a place to which the vessel 
frequently returns. The idea of "frequent," as thus used, 
is generally covered by the prohibition against taking a 
new supply of coal from the same neutral port till after 
the expiration of a period of three months. Some states, 
however, allow such supply within three months provided 
permission is obtained from the proper authority. 

It would seem to be evident that while the supplying of 
coal to a belligerent is not prohibited by international law 
though it has been prohibited in many proclamations, yet 



CONCLUSION. 87 

the supplying of coal at such frequent intervals as would 
make the neutral port a base is generally regarded as pro- 
hibited by international law, as is practically admitted in 
the reply of France to Japan in 1905. 

It seems to be the general opinion that the supply of 
fuel, etc., to belligerents should be somewhat restricted in 
neutral ports. 

There are differences of opinion as to the extent of 
necessary restrictions. Doubtless there would be need of 
special restriction in special cases. Some degree of free- 
dom should remain to the neutral in making provisions 
for special conditions. It would seem reasonable that the 
neutral should not afford a greater supply of coal* or oil 
even for lubricating purposes than an amount sufficient to 
carry the vessel to the home port. The purpose is to 
guard against the furnishing of supplies for hostile uses 
and at the same time not to intern a vessel of a belliger- 
ent which may enter a neutral port. It would probably 
be desirable to restrict the supply of oil for purposes of 
fuel which would be included under the general head of 
fuel and for lubricating purposes which makes necessary 
specific mention of oil. 

Considering opinions, precedents, practice and the aims 
of a regulation, the following seems a reasonable con- 
clusion : 

Conclusion. — The supply of fuel or oil within a neutral 
port to vessels in belligerent service in no case shall ex- 
ceed what is necessary to make the total amount on board 
sufficient to reach the nearest unblockaded port of the 
belligerent vessel's own state or some nearer named desti- 
nation. 

The supply may be subject to such other regulation as 
the neutral may deem expedient. 



Topic V. 

What regulations should be made in regard to mail^anji 
passeng er vessels in time of war? 

CONCLUSION. 

(a) Neutral mail or passenger vessels, of regular lines 
established before and not in contemplation of the out- 
break of hostilities, bound upon regular voyages and 
furnishing satisfactory government certification that they 
are mail or passenger vessels, and do not carry contra- 
band, are exempt from interference except on ample 
grounds of suspicion of action not permitted to a neutral. 

(b) Mail or passenger vessels of belligerents, of similar 
lines, upon regular voyages, plying to neutral ports, 
should be exempt from interference under such restric- 
tions as will prevent their use for war purposes. 

(c) Mail or passenger vessels, similarly plying between 
belligerent ports, may. under such restrictions as the bel- 
ligerents may agree upon, be exempt from interference. 

DISCUSSION AND NOTES. 

( lasses of mail and passenger vessels. — The mail and 
passenger vessels plying to and from a given belligerent 
port at the outbreak of war may be — 

(1) Vessels of the belligerent state having jurisdiction 
over the port. 

(2) Vessels of the opposing belligerent. 

(3) Neutral vessels. 

Vessels of allies would fall under those of the state to 
which they were allied. 

(1) Over vessels of the first class, the state having 
jurisdiction over the port would have full authority 
within the limits of international and other agreements. 

(2) To vessels of the opposing belligerent under pres- 
ent practice no special favor need be shown. 

In the case of the Panama, in 1900 — 

It was argued in behalf of the claimant that, independently of 
her being- a merchant vessel, she was exempt from capture by 

(88) 



CASE OF THE PANAMA. 89 

reason of her being a mail steamship and actually carrying 1 mail 
of the United States. 

There are instances in modern times, in which two nations, by 
convention between themselves, have made special agreements 
concerning' mail ships. But international agreements for the 
immunitj' of the mail ships of the contracting parties in case of 
war between them have never, we believe, gone further than to 
provide, as in the postal convention between the United States 
and Great Britain in 1848, in that between Great Britain and 
France in 1833, and in other similar conventions, that the mail 
packets of the two nations shall continue their navigation, with- 
out impediment or molestation, until a notification from one of 
the governments to the other that the service is to be discon- 
tinued ; in which case they shall be permitted to return freely, 
and under special protection, to their respective ports. And the 
writers on international law concur in affirming that no provi- 
sion for the immunity of mail ships from capture has as yet been 
adopted by such a general consent of civilized nations as to con- 
stitute a rule of international law. (9 Stat.. 969; Whe aton (8th 
ed.), pp. 659-661, Dana's note; Calvo (5th ed.), sees. 2378, 2809: 
De Boeck, sees. 207. 208.) De Boeck. in section 208. after observ- 
ing that, in the case of mail packets between belligerent coun- 
tries, it seems difficult to go further than in the convention of 
1833, above mentioned, proceeds to discuss the case of mail 
packets between a belligerent and a neutral country, as follows : 
"It goes without saying that each belligerent may stop the depar- 
ture of its own mail packets. But can either intercept enemy 
mail packets? There can be no question of intercepting neutral 
packets, because communications between neutrals and bellig- 
erents are lawful, in principle, saving the restrictions relating to 
blockade, to contraband of war, and the like ; the rights of 
search furnishes belligerents with a sufficient means of control. 
But there is no doubt that it is possible, according to existing 
practice, to intercept, and seize the enemy's mail packets." 

The provision of the sixth clause of the President's proclama- 
tion of April 26, 1898, relating to interference with the voyages 
of mail steamships, appears by the context to apply to neutral 
vessels only, and not to restrict in any degree the authority of 
the United States, or of their naval officers, to search and seize 
vessels carrying the mails between the United States and the 
enemy's country. Nor can the authority to do so, in time of 
war, be affected by the facts that before the war a collector of 
customs had granted a clearance, and a postmaster had put 
mails on board, for a port which was not then, but has since 
become, enemy's country. Moreover, at the time of the capture 
lof the Panama, this proclamation had not been issued. With- 
out an express order of the Government, a merchant vessel is 
not privileged from search or seizue by the fact that it has a 
government mail on board. (The Peterhoff, 5 Wall., 28, 61.) 



90 MAIL AND PASSENGER VESSELS DURING WAR. 

The mere fact, therefore, that the Panama was a mail steam- 
ship, or that she carried mail of the United States on this voyage, 
does not afford any ground for exempting her from capture. 
(176 U. S. Supreme Court Reports, 535.) 

The position of the court in the case of the Panama 
seems to be correct. There is at present no way by which 
an adequate guaranty can be secured that vessels of one 
belligerent will not in some manner act to the injury of 
the other when they are allowed freedom in transit. 

(3) The main questions arise in regard to the vessels 
of neutrals plying to belligerent ports. Should mail ves- 
sels of a neutral be allowed freedom in such commerce? 

Treatment of mail vessels. — The British regulations in 
regard to the carriage of dispatches according to the Man- 
ual of the Naval Prize Law provide — 

CARRYING ENEMY'S DISPATCHES. 

96. A commander should detain any neutral vessel which has 
on board enemy's dispatches. 

97. By the term " enemy's dispatches " are meant any official 
communications, important or unimportant, between officers, 
whether military or civil, in the service of the enemy on the 
public affairs of their government. 

98. But to this rule there is one exception, namely, official com- 
munications between enemy's home government and the enemy's 
ambassador or consul resident in a neutral state. Such commu- 
nications are permissible on the presumption that they concern 
the affairs of the neutral state, and therefore are of a pacific 
character. 

99. Official communications between the enemy and neutral 
foreign governments are under no circumstances ground for 
detention. 

EXCUSES TO BE DISREGARDED. 

100. It will be no excuse for carrying dispatches that the 
master is ignorant of their character. 

101. It will be no excuse that he was compelled to carry the 
dispatches by duress of the enemy. 

102. The mail bags carried by mail steamers will not, in the 
absence of special instructions, be exempt from search for enemv 
dispatches. 

LIABILITY OF VESSEL WHEN IT BEGINS. WHEN IT ENDS. 

103. A vessel which carries enemy's dispatches becomes liable 
to detention from the moment of quitting port with the dis- 
patches on board, and continues to be so liable until she has 



TREATMENT OF MAIL VESSELS. 91 

deposited them. After depositing them the vessel ceases to be 
liable. 

enemy's dispatches not to be removed. 

104. The commander will not be justified in taking out of a 
vessel any enemy's dispatches he may have found on board, and 
then allowing the vessel to proceed ; his duty is to detain the 
vessel and send her in for adjudication, together with the dis- 
patches on board. 

PENALTY. 

105. The penalty for carrying enemy's dispatches is the confis- 
cation of the vessel and such part of the cargo as belongs to her 
owner. 

-Pille t says of these regulations : 

Le Manuel des prises reproduit toutes les riguers des anciennes 
decisions de cours de prises britanniques ; certaines de ces ri- 
gueurs ne semblent plus de mise aujourd'hui. II s'est opere, dans 
les relations maritimes, des changements considerables dont il y 
aurait lieu de tenir compte. C'est a quoi s'applique la doctrine. 
(La guerre maritime et la doctrine anglaise, sec. 232.) 

By Article XX of the postal convention between the 
United States and Great Britain in 1848 mail packets 
were to "continue their navigation without impediment 
or molestation until six weeks after a notification shall 
have been made, on the part of either of the two Govern- 
ments, and delivered to the other, that the service is to 
be discontinued ; in which case they shall be permitted to 
return freely, and under special protection, to their re- 
spective countries." 

The United States proclamation of April 26, 1898, 
states : 

6. The right of search is to be exercised with strict regard for 
the rights of neutrals, and the voyages of mail steamers are not 
to be interfered with except on the clearest grounds of suspicion 
of a violation of law in respect of contraband or blockade. 

The Spanish instructions for the exercise of the right 
of visit in 1898 state that in consequence of the visit the 
vessel is captured in the following case : 

7. If she carries letters and communications of the enemy, 
unless she belong to a marine mail service, and these letters or 
communications are in bags, boxes, or parcels with the public 
correspondence, so that the captain may be ignorant of their 
contents. 



92 MAIL AND PASSENGER VESSELS DURING AVAR. 

It may be entirely possible for a vessel to give very 
valuable assistance by way of furnishing information. 
Spain in 1898 stated that a vessel was liable to capture — 

8. If the vessel is employed in watching the operation of war, 
either freighted by the other belligerent or paid to perform this 
service. ' 

9. If the neutral vessel takes part in this employment, or assists 
in any way in such operations. 

The Ja panese regulations governing captures at sea in 
1904 provided: 

Abt. XXXIV. In visiting or searching a neutral mail ship, if 
the mail officer of the neutral country on board the ship swears 
in a written document that there are no contraband papers in 
certain mail bags those mail bags shall not be searched. In case 
of grave suspicion, however, this rule does not apply. 

Art. LXVIII. When a mail steamer is captured, mail bags con- 
sidered to be harmless shall be taken out of the ship without 
breaking the seal, aud steps shall be taken quickly to send them 
to their destination at the earliest date. 

The Russian instructions concerning the stopping, ex- 
amining, and detaining of vessels state: 

16. After having examined the ship's papers, the officer asks 
the master to present what mail he has, searches for correspond- 
ence of the hostile government and, generally speaking, all pack- 
ages addressed to the enemy's ports. 

Cases involving mail steamers w ere reported during the 
Russo-Japanese Avar in 1904—5. The Osiris, British steam- 
ship, was stopped on May 4, 1904, by a Russian cruiser 
and delayed about two hours in an investigation to find 
whether it contained Japanese mails. On July 15 the 
German steamship Prinz Heinrich was stopped by the 
Smolensk of the Russian volunteer navy and the mail 
bags taken out. These, with the exception of two, were 
forwarded by the British steamship Persia, which was 
stopped by the Smolensk for that purpose. 

At the time of the Russian seizures the United States 
Secretary of State sent the following to the United States, 
representative in Russia: 

Department of State, 
Washington, October 13, 1904> 

Sib : I inclose copies of papers received from the. Postmaster 
General, concerning the confiscation or detention by the Russian 



MAIL VESSELS DURING RUSSO-JAPANESE AVAR. 93 

Vladivostok squadron of mail matter from the United States on 
board the British steamer Calchas^ seized off the Japan coast 
about July 26 last. 

You will bring this instance of what appears to be a violation 
of the provisions of the Universal Postal Convention to the atten- 
tion of the Russian Government, and request of it an investiga- 
tion and appropriate action. 

Any interruption of regular postal communication entails such 
serious inconvenience to various interests that, apart from the 
provisions of treaty, a usage has in recent years grown up to 
exempt neutral mails from search or seizure. In presenting this 
matter to the Eussian Government you will refer to this fact and 
express the confidence of this Government that, in its treatment 
of the subject, the Eussian Government will recognize the liberal 
tendency of recent international usage to exempt neutral mails 
from molestation. 

I am, etc., John Hay. 

(Foreign Eelations, U. S., 1904, p. 772.) """ 

At the present time, with the possibilities of telegraphic 
communication, it hardly seems reasonable to imagine that 
important war correspondence of a belligerent will be in- 
trusted to the ordinary course of the mails. Other means 
are so much more rapid and time is such an important 
element in warfare that it would seem that only in rare 
instances would dispatches of importance to the captor 
be intrusted to the mails. Dispatches thus sent would be 
liable to delay, loss, and other accidents. It may be that, 
like some other regulations, they may come so late that the 
necessity for their existence may have disappeared. Much 
of the important business of the world in time of peace 
is now carried on by means of the telegraph. A much 
greater proportion is intrusted to the telegraph in time of 
war. 

The diplomatic and ordinary consular dispatches and 
correspondence between a belligerent and a neutral are not 
supposed to relate to hostilities, but to the relations be- 
tween the belligerent and neutral only. The neutral has, 
therefore, rights in this correspondence, which rights must 
be fully respected. Such dispatches and correspondence 
are, therefore, generally exempt from all interference. 

Ordinary dispatches and correspondence from a bellig- 
erent state may be carried by the regular means of trans- 
port without offense. 



94 MAIL AND PASSENGER VESSELS DURING WAR. 

Kleen says in regard to mail vessels that there should 
be some distinction in granting immunity: 

L'immunite doit etre inconditionnelle sur les lignes purement 
inter nationales, c'est-a-dire celles qui s'etendent entre des Etats 
differents, puisque la les paquebots peuvent etre censes servir 
sans distinction des nations. II en decoulerait l'exemption de 
saisie en f aveur des paquebots allant entre les possessions neutres, 
et entre elles et les possessions des belligerants. N'importe que 
ces paquebots soient publics ou prives ou ressortissent a des Etats 
neutres ou belligerants, s'ils ne font aucun commerce, ils ne peu- 
vent etre saisis sans preuve prealable d'un abus de l'immunite. 
Au contraire, les paquebots allant entre les possessions d'un bel- 
ligerant, soit dans les limites de son Etat, ou entre lui et ses 
colonies — lignes qui ne peuvent etre qualifiers d'internationales — 
ne sauraient etre reputes servir sans distinction des nations ; il est 
juste que la partie adverse dans la guerre les considere comme na- 
tionaux, done comme ennemis par rapport a, elle, susceptibles d'une 
application du droit de saisie tout comme d'autres navires enne- 
mis, s'ils naviguent sous pavilion ennemi. Seulement, il est aussi 
equitable que le belligerant qui, sur ces fondements et dans ces 
cas, veut refuser l'immunite a des paquebots faisant un service 
regulier sur une ligne exploitee deja avant la guerre, le fasse 
savoir officiellement avant d'entreprendre aucune saisie, car les 
interets leses par les saisies peuvent relever de nations quel- 
conques. (2* La neutrality, p. 506.) 

Commander von Uslar of the German navy suggests in 
regard to mail steamers, that — 

An agreement may perhaps be arrived at on the lines that (a) 
neutral mail steamers are to be stopped and seized only in the 
neighborhood of the actual seat of war, and only when strong 
suspicion rests on them; (&) outside the actual seat of war the 
mails, including those of the belligerents, not to be touched. 
This exceptional treatment of the correspondence of the bellig- 
erents, which is in the interest of the neutrals, can have no essen- 
tial disadvantage from a military point of view, as important 
intelligence will be transmitted by telegraph. (181 North Ameri- 
can Review, p. 186.) 

De JJoi&k gives the following conclusions in regard to 
the treatment of mail vessels: 

208. Au point de vue de la protection a aecorder aux paquebots- 
poste ennemis, il nous parait necessaire de distinguer trois cas : 
Premier cas. Le paquebot-poste fait communiquer les deux pays 
ennemis. Dans ce cas, il semble difficile d'aller plus loin que 
l'article 13 de la convention du 14 juin 1833, qui declare les pa- 
quebots faisant le service postal entre Douvres et Calais exempts 



GENERAL CONCLUSIONS AS TO MAIL VESSELS. 95 

d'embargo, d'arret de prince, de toute requisition et de toute 
molestation, jusqu'a ce que l'un des deux belligerants notifie a 
l'autre son intention de f aire cesser le service, et qui, dans ce cas, 
assure le retour des paquebots dans leurs ports respectifs. 
Deuxieme cas. Le paquebot-poste fait le service du transport des 
d&peches entre un pays ennemi et un pays neutre. II va de soi 
que chaque belligerant pourra empecher le depart de ses propres 
paquebots. Mais chacun d'eux pourra-t-il intercepter les paque- 
bots-poste ennemis? II ne pourra etre question d'intercepter 
les paquebots neutres, puisque les communications entre neutres 
et belligerants sont licites, en principe, sauf les restrictions rela- 
tives au blocus, a la contrebande de guerre et a ses analogues : 
le droit de visite fournit aux belligerants un moyen de controle 
suffisant. Mais nul doute qu'il soit possible, d'apres la pratique 
actuelle, d'intercepter et de saisir les paquebots ennemis. II 
nous semble qu'il serait a la f ois necessaire et sans inconvenients 
serieux de les neutraliser, c'est-a-dire de les mettre sur la meme 
ligne que les paquebots neutres : pour les uns comme pour les 
autres les interets legitimes seront suffisamment sauvegardes 
par l'exercice du droit de visite. Troisidme cas. Les paquebots 
transportent les depeches entre deux parties du territoire du 
m$me belligerant, par exemple, entre l'Angleterre et les Indes, 
la France et PAlgerie. Ici, il va encore de soi qui ce belligerant 
peut, a son gre, faire cesser ce service. Et l'autre belligerant? 
II y aura souvent un grand interet, et nous ne croyons pas qu'il 
puisse s'engager a respecter ce service. Nous concluons done 
qu'il serait desirable de voir intervenir des conventions qui as- 
surent l'inviolabilite des paquebots-poste ennemis faisant le ser- 
vice du transport des depeches entre le pays de chaque belligerant 
et un pays neutre aux conditions et sous les reserves admises a 
l'egard des paquebots neutres. (Propriete privee ennemi, p. 240.) 

General conclusions as to mail vessels. — From this dis- 
cussion it would seem to follow : 

1. That mail vessels belonging to a belligerent are liable 
to seizure by the other belligerent. 

2. That such vessels may by special agreement be ex- 
empt from capture. 

3. That as the interests of neutrals may be involved in 
such seizure, the mails should, so far as regular, be for- 
warded without delay. 

4. That when such vessels ply between neutral and bel- 
ligerent states due notice should be given of liability to 
interruption. 

5. Innocent neutral vessels carrying mails should be ex- 
empt from seizure. 



96 MAIL, AND PASSENGER VESSELS DURING AVAR. 

Passenger traffic and transport service. — There is little 
question that the regular passenger traffic between bel- 
ligerents and neutrals should be as free as the necessities 
of war will permit. There would be little advantage to 
a belligerent in interfering with such traffic. 

Quite different is the transport of troops or military 
persons by direct agreement or in the service of a bellig- 
erent. The act is very different from the carriage of con- 
traband which may be purely a commercial venture. The 
act may be of far greater service than the transport of 
war material. The vessel engaging in the transport of 
troops really enters the service of the enemy and the act 
becomes military in nature and the vessel, whatever its 
nationality, is liable to treatment as an enemy vessel. The 
seizure of the military persons transported would not be 
an adequate penalty for the vessel concerned, but the ves- 
sel itself is liable to confiscation and the persons concerned 
may be held as prisoners of war. 

Speaking of the service of a regular passenger vessel, 
Hall says: 

When again a neutral in the way of his ordinary business holds 
himself out as a common carrier, willing to transport everybody 
who may come to him for a certain sum of money from one speci- 
fied place to another, he can not be supposed to identify himself 
specially with belligerent persons in the service of the state who 
take passage with him. The only questions to be considered are 
whether there is any usage compelling him to refuse to receive 
such persons if they are of exceptional importance, and conse- 
quently whether he can be visited with a penalty for receiving 
them knowingly, and whether, finally, if he is himself free from 
liability, they can be taken by their enemy from on board his 
vessel. (International Law, 5th ed., p. 674.) 

When a vessel is directly used as a transport for enemy 
persons the condition is unlike that of an ordinary pas- 
senger vessel. Wheat on says : 

Of the same nature with the carrying of contraband goods is 
the transportation of military persons or dispatches in the serv- 
ice of the enemy. 

A neutral vessel, which is used as a transport for the enemy's 
forces, is subject to confiscation, if captured by the opposite bel- 
ligerent. Nor will the fact of her having been impressed by 
violence into the enemy's service exempt her. The master can 



PASSENGER AND TRANSPORT SERVICE. 97 

not be permitted to aver that he was an involuntary agent. Were 
an act of force exercised by one belligerent power in a neutral 
ship or person to be considered a justification for an act, con- 
trary to the known duties of the neutral character, there would 
be an end of any prohibition under the law of nations to carry 
contraband, or to engage in any other hostile act. If any loss 
is sustained in such a service, the neutral yielding to such de- 
mands must seek redress from the government which has im- 
posed the restraint upon him. As to the number of military 
persons necessary to subject the vessel to confiscation, it is diffi- 
cult to define ; since fewer persons of high quality and character 
may be of much more importance than a much greater number 
of persons of lower condition. To carry a veteran general, under 
some circumstances, might be a much more noxious act than the 
conveyance of a whole regiment. The consequences of such as- 
sistance are greater, and therefore the belligerent has a stronger 
right to prevent and punish it; nor is it material, in the judg- 
ment of the prize court, whether the master be ignorant of the 
character of the service on which he is engaged. It is deemed 
sufficient if there has been an injury arising to the belligerent 
from the employment in which the vessel is found. If imposi- 
tion is practiced, it operates as force ; and if redress is to be 
sought against any person, it must be against those who have, 
by means either of compulsion or deceit, exposed the property to 
danger , otherwise, such opportunities of conveyance would be 
constantly used, and it would be almost impossible, in the greater 
number of cases, to prove the privity of the immediate offender. 
(Atlay's ed., p. 673.) 

In an extended treatment of transport, Kleen says, very 
properly : 

Quelquef ois ont ete ranges parmi les articles de contrebande de 
guerre certains objets qui n'y appartiennent pas, bien que leur 
transport pour le compte ou a destination d'un belligerant puisse 
etre interdit. Non seulement chez des publicistes mais aussi dans 
des lois et traites, certaines personnes et communications sont 
considerees comme une espece de contrebande, du moment qu'elles 
ont ete apportees a un ennemi ou transporters a cause de lui, de 
maniere a le renf orcer ou l'aider dans la guerre, soit materielle- 
ment, soit meme intellectuellement. C'est ainsi que se ren- 
contrent depuis longtemps sur les listes de contrebande des ob- 
jets tels que "soldats," "troupes," etc., dernierement aussi "docu- 
ments." (I La neutralite, p. 452, sec. 103.) 

Later, Kleen says : 

En transport des personnes ou des depeches pour le compte d'un 
belligerant comme tel, ou entre ses stations, possessions ou 
autorites en vue de la guerre, le neutre ne se borne pas a lui 

18949 7 



98 MAIL AND PASSENGER VESSELS DURING WAR. 

apporter purement et simplement un renf ort : il se met a son 
service. Et ce service se fait par le transport de ce qui apparte- 
nait deja an belligerant ou a, son administration, tandis que le 
trafic de contrebande lui fournit quelquechose de nouveau. 

Assurement. la neutralite n'exige pas l'interruption des rela- 
tions personnelles et postales avec les belligerants. II est permis 
de leur amener des personnes hors des enroles et des auxiliaires, 
ainsi que des choses non de contrebande. II n'est pas necessaire, 
non plus, de suspendre un service de communication sur le terri- 
toire d'un belligerant ou y aboutissant, qui y avait ete organise 
avant la guerre ou independamment d'elle, regulierement et sans 
autre but que le trafic ordinaire, fut-ce meme par des neutres. 
Le fait de transporter des personnes ou des choses relevant d'un 
belligerant, ne deroge a la neutralite que lorsque cela se fait 
pour lui en sa quality de belligerant et pour son compte, ou bien 
entre ses stations ou autorites, de telle sorte que le neutre se 
met a sa disposition en vue de l'aider a, faire passer a leur desti- 
nation belliqueuse des objets ou des forces qui concernent la 
guerre. C'est ce qui peut avoir lieu par des transports, dans cer- 
taines circonstances, des agents diplomatiques, des militaires, 
des depeches ou des approvisionnements d'un belligerant, ainsi 
que par le pilotage de ses navires de guerre. La neutralite serait 
rompue par de tels actes, independamment de tout usage ou 
convention, et quand meme le service serait rendu aux deux par- 
ties belligerantes. (I Kleen. La neutralite. p. 456.) 

British regulations. — The British Manual of Naval 
Prize Law make- very full provision in regard to the car- 
riage of persons for the enemy : 

ACTING AS A TRANSPORT. 

88. A commander should detain any neutral vessel which is 
being actually used as a transport for the carriage of soldiers or 
sailors by the enemy. 

89. The vessel should be detained, although she may have on 
board onty a small number of enemy officers ; or even of civil 
officials sent out on the public service of the enemy, and at the 
public expense. 

90. The carriage of ambassadors from the enemy to a neutral 
State, or from a neutral State to the enemy, is not forbidden to 
a neutral vessel, for the detention of which such carriage is 
therefore no cause. 



EXCUSES TO BE DISREGARDED. 

91. It will be no excuse for carrying enemy military persons 
that the master is ignorant of their character. 

92. It will be no excuse that he was compelled to carry such 
persons by duress of the enemy. 



GOVERNMENTAL REGULATIONS. 99 

LIABILITY OF VESSEL— WHEN IT BEGINS, WHEN IT ENDS. 

93. A vessel which carries enemy military persons becomes 
liable to detention from the moment of quitting port with the 
persons on board, and continues to be so liable until she has 
deposited them. After depositing them the vessel ceases to be 
liable. 

PERSONS NOT TO BE REMOVED. 

94. The commander will not be justified in taking out of a vessel 
any enemy persons he may have found on board, and then allow- 
ing the vessel to proceed ; his duty is to detain the vessel and 
send her in for adjudication, together with the persons on board. 

PENALTY. 

95. The penalty for carrying enemy military persons is the 
confiscation of the vessel and of such part of the cargo as belongs 
to her owner. 

United States regulations. — It was provided in the 
United States instructions to blockading vessels and 
cruisers of June 20, 1898 : 

16. A neutral vessel in the service of the enemy, in the trans- 
portation of troops or military persons, is liable to seizure. 

Japanese regulations. — In the Japanese regulations of 
190-1 it is stated that— 

Art. XXXVIII. Vessels carrying contraband persons, papers, or 
goods, but which do not know the outbreak of war, shall be ex- 
empt from capture. 

The fact that the master of a vessel does not know the persons, 
papers, or goods on board to be contraband of war, or that he 
took them on board under compulsion, shall not exempt the vessel 
from capture. 

Penalty for transport service. — The penalty for un- 



neutral service differs from that for the carriage of con- 
traband : 

It will be remembered that in the case of ordinary contraband 
trade the contraband merchandise is confiscated, but the vessel 
usually suffers no further penalty than loss of time, freight, and 
expenses. In the case of transport of dispatches or belligerent 
persons,- the dispatches are of course seized, the persons become 
prisoners of war, and the ship is confiscated. The different treat- 
ment of the ship in the two cases corresponds to the different 
character of the acts of its owner. For simple carriage of con- 
traband the carrier lies under no presumption of enmity towards 
the belligerent, and his loss of freight, etc., is a sensible deter- 
rent from the forbidden traffic ; when he enters the service of 



100 MAIL AND PASSENGER VESSELS DURING WAR. 

the enemy seizure of the transported objects is not likely to 
affect his earnings, while at the same time he has so acted as 
fully to justify the employment towards him of greater severity. 
(Hall, International Law, 5th ed., p. 678.) 

In the transport of persons in the service of a belligerent, the 
essence of the offense consists in the intent to help him ; if , 
therefore, this intent can in any way be proved, it is not only 
immaterial whether the service rendered is important or slight, 
but it is not even necessary that it shall have an immediate local 
relation to warlike operations. It is possible for a neutral car- 
rier to become affected by responsibility for a transport effected 
to a neutral port, and it may perhaps be enough to establish lia- 
bility that the persons so conveyed shall be in no civil employ- 
ment. (Hall, International Law, 5th ed., p. 677.) 

The penalty for illegal transport service can not end 
with the confiscation of dispatches. 

Independamment des peines imposees par les legislations na- 
tionals — peines qui doivent etre identiques au possible et s'ac- 
corder avec le droit international — les navires coupables de 
services de transport sont confisques ainsi que les depeches et 
objets illicites, les personnes illegalement transporters et les 
pilots contrevenants peuvent etre faits prisonniers, et les patrons 
ou armateurs en faute perdent leur pretention au fret et aux 
frais. (I Kleen, La neutrality, p. 474.) 

Dana, in a note to Wheaton's International Law, says: 

If a vessel is in the actual service of the enemy as a transport, 
she is to be condemned. In such case it is immaterial whether 
the enemy has got her into his service by voluntary contract or 
by force or fraud. It is also, in such cases, immaterial what is 
the number of the persons carried, or the quantity or character 
of the cargo ; and, as to dispatches, the court need not speculate 
upon their immediate military importance. It is also unimpor- 
tant whether the contract, if there be one, is a regular letting to 
hire, giving the possession and temporary ownership to the enemy, 
or a simple contract of affreightment. The truth is, if the ves- 
sel is herself under the control and management of the hostile 
government, so as to make that government the owner pro tem- 
pore, the true ground of condemnation should be as enemy's prop- 
erty. (Note 228, p. 643.) 

International Law Association discussion. — Mr. Donor- 
las Owen, at the meeting of the International Law Asso- 
ciation in 1905. proposed that Great Britain should take 
measures to protect mail and passenger steamers, saying: 

1. In the first place the royal proclamation should, in the case 
of mail and passenger steamers, be regarded as something more 



INTERNATIONAL LAW ASSOCIATION DISCUSSION. 101 

than a pious wish. It should be given the force of a legal pro- 
hibition, with punitive enactments. 

2. Owners knowingly carrying contraband goods, and traders 
shipping contraband goods, by such vessels should be rigorously 
dealt with ; the fraudulent misdescription of contraband goods 
being treated as a grave offense. 

3. Shipowners put to loss or expense through the illegal ship- 
ment of contraband, or cargo owners similarly damnified by the 
illegal carriage of contraband, to have the right to claim com- 
pensation from the wrongdoers. 

4. Contraband goods illegally shipped or intended to be shipped 
to be subject to confiscation. 

5. The penalties for breach of the (suggested) law to be en- 
forceable notwithstanding the successful delivery of the contra- 
band goods. 

6. Persons giving information of breach or intended breach of 
the law to be rewarded by a proportion of the value of the con- 
fiscated goods, or otherwise. 

7. Insurances in contravention of the law to be null and void, 
with penalties upon the underwriters knowingly effecting such 
insurances. 

8. Shipowners under Government subsidy for the carriage of 
mails or license for the conveyance of passengers to give pecuni- 
ary guarantees for observance of the (suggested) special laws 
against carriage of contraband. 

I submit that there would be nothing unreasonable or imprac- 
ticable in such laws, and that few, if any, British subjects would 
dare to attempt their breach or evasion. Contraband traders 
would, instead, make use of ships to which the laws did not apply. 
The shipment and carriage of contraband by mail and passenger 
steamers from Great Britain would cease, and with such cessa- 
tion would disappear any reason for their capture. It may be 
objected that the British law would not prevent the shipment of 
disguised contrabands by British liners loading cargo at Conti- 
nental ports. I admit it ; but if the regulations which I have 
sketched were adopted by all the states ; if they were, in fact or 
effect, made international, the mail and passenger steamers of 
every nation would be closed to the trade in contraband. The 
offense would be equally preventable and punishable, whether 
committed by a foreign merchant against a British ship, or con- 
versely by a British merchant against a foreign ship. It is my 
firm belief that the effect of an international law on the lines 
indicated would operate with such success that before long there 
would be a universal demand for similar restrictions, in protec- 
tion of neutral traders generally, in the case of recognized liners 
sailing with the regularity of mail and passenger steamers, but 
by reason of their slower speed not in the category of such spe- 
cial vessels. (22d Report, p. 62.) 



102 MAIL AND PASSENGER VESSELS DURING AVAR. 

At this meeting of the International Law Association at 
Christiania in 1905. Mr. Douglas Owen, offered the follow- 
ing resolution which, after amendment, was adopted : 

That in the opinion of this conference the time has come for 
protecting- the world's mail and passenger steamers from bellig- 
erent seizure, and that with this object international legislation 
should be adopted to prevent the shipment and carriage of con- 
traband of war by such vessels, and to render the same a punish- 
able offense. (22d Report, p. 73.) 

In seconding the resolution, Sir Walter Phillimore said : 

I rise to second the proposal of Mr. Douglas Owen, because I 
agree on the whole with what he has proposed. Two things seem 
to me to be very obvious. The first thing is that it is quite im- 
possible that all the mail steamers of the world, with their enor- 
mous cargoes and enormous interests at stake of private im- 
portance and public importance, and their large number of 
passengers, should be liable, as they are liable, to be visited 
and to be taken into a port of some belligerent nation, a 
port which may be 1,000 miles away, on suspicion that they 
are carrying contraband of war. It seems to me impossible 
that they should continue. It also seems to me impossible to 
deprive belligerents of their rights to stop contraband of war 
being carried by passenger mail steamers with valuable com- 
mercial cargoes. If mail steamers are carrying contraband of 
war, the belligerents have a right to prevent it, and therefore 
we must try to reconcile the two rights ; that is to say, try 
to secure a belligerent from having contraband of war carried 
by passenger mail steamers, and try, on the other hand, to secure 
the neutral passengers on mail steamers from visit and detention 
and deviation into some port belonging to the captor. One way 
which Mr. Douglas Owen suggests is that the neutral nation 
should intervene and give, as it were, its word of honor that its 
passenger steamers would not convey contraband, and should en- 
force that by a Government inspection and by making it a 
criminal orcense for such vessels to ship contraband. That is one 
way of doing it. Another way that has occurred to me is that 
without any such legislation a large steamship owner might put 
himself in communication with his own government, and might 
say : "I am ready to submit to any inspection which you like to 
make ; I am willing to give bonds to pay if I fail, not only at the 
port of original dispatch, but at all ports at which my ships touch, 
if you will put your agents on board to inspect. On the other 
hand, I ask you to communicate with the two belligerents, and to 
obtain from them a letter or license for me that my ship, ful- 
filling those conditions, shall not be arrested in the course of the 
voyage, or, at any rate, not arrested on suspicion that it is not 



RULES OF INSTITUTE OF INTERNATIONAL LAW. 103 

fulfilling all the conditions, but has taken some goods on board 
for transit which it ought not to do." There is a third way in 
which it might be done, even perhaps more direct. The steam- 
ship company might put itself, through its manager, in commu- 
nication direct with the two belligerents, and might say: "Send 
down to Southampton, or to the docks in London, or to New 
York, a Japanese agent from Japan and a Russian agent from 
Russia, or if you like, somebody you can trust — your consul or 
anybody else — and I will ship under the supervision of any agent 
you like to appoint, and then I ask each of you in turn not to 
arrest me on the high seas." All these are various ways of meet- 
ing the end to be attained. Perhaps the most official way is that 
which is suggested by Mr. Douglas Owen. I feel convinced, hav- 
ing thought a good deal on this subject, that the time has come, 
not for diminishing the effective rights of belligerents, but for 
preventing the Prinz Heinrich, or one of the English mail steam- 
ers, or great American liners like the Paris, being diverted for 
1,000 miles from her course, with all her passengers on board, on 
suspicion of having contraband of war. For these reasons I 
second Mr. Douglas Owen's proposal. (Applause.) (Ibid., p. 91.) 

Rules of the Institute of International Law. — The In- 
stitute of International Law in lj$6 adopted the follow- 
ing rules in regard to transport service: 

Sec. 6. II est defendu d'attaquer ou empecher le transport de 
diplomates ou courriers diplomatiques : l a neutres, 2 a accredites 
aupres de gouvernements neutres ; 3 a naviguant sous pavilion 
neutre entre des ports neutres ou entre un port neutre et le port 
d'un belligerant. 

Au contraire, le transport des diplomates d'un ennemi accredi- 
tes aupres de son allie est, sauf le trafic regulier et ordinaire, in- 
terdit ; l a sur les territoires et eaux des belligerants ; 2 a entre 
leurs possessions ; 3 a entre les bellig'erants allies. 

Sec. 7. Sont interdits les transports de troupes, militaires ou 
agents de guerre d'un ennemi ; l a dans les eaux des belligerants ; 
2 a entre leurs autorites, ports, possessions, armees ou flottes ; 3 a 
lorsque le transport se fait pour le compte ou par l'ordre ou le 
mandat d'un ennemi, ou bien pour lui amener soit des agents 
avec une commission pour les operations de la guerre, soit des 
militaires etant deja a son service ou des troupes auxiliaires ou 
enrolees contrairement a la neutrality, entre ports neutres, entre 
ceux d'un neutre et ceux d'un belligerant, d'un point neutre a 
l'armee ou la flotte d'un belligerant. 

L'interdiction ne s'etend pas au transport de particuliers qui 
ne sont pas encore au service militaire d'un belligerant, lors 
raeme qu'ils auraient 1'intention d'y entrer, ou qui font le trajet 
comme simples voyageurs sans connexite manifeste avec le ser- 
vice militaire. 



104 MAIL AND PASSENGER VESSELS DURING WAR. 

Sec. 8. Entre deux autorites d'nn ennemi, qui se trouvent sur 
quelque territoire ou navire lui appartenant ou occupe par lui, est 
interdit, sauf le trafic regulier et ordinaire, le transport de ses 
depeches (communications officielles entre autorites officielles). 

L'interdiction ne s'etend pas aux transports soit entre ports 
neutres, soit en provenance ou a destination de quelque territoire 
ou autorite neutre. (15 Annuaire de l'lnstitut de Droit inter- 
national, 1896, p. 231.) 

Summary. — In any rules which might be proposed it 
would seem proper — 

1. That a belligerent refraining from interference with 
a neutral or belligerent mail or passenger vessel which 
naturally might be of service to its opponent should have 
a right to demand that a reasonable assurance be given 
that such vessel should not be put to any war use if per- 
mitted to continue its regular traffic. 

2. That neutrals should claim that regular mail and 
passenger service which in no way affects the conduct of 
hostilities should be free from interference. 

3. That neutrals or belligerents to whom exemption 
from interference is conceded should be willing to take 
reasonable care in order that the concession be not abused. 
This can probably be done effectively by certification as to 
the character and guaranties as to use. 

From regulations, opinions, precedents, and theories it 
would seem that the following rules should be established 
by international agreement: 

Conclusion. — (a) Neutral mail or passenger vessels, of 
regular lines established before and not in contemplation 
of the outbreak of hostilities, bound upon regular voyages 
and furnishing satisfactory government certification that 
they are mail or passenger vessels, and do not carry con- 
traband, are exempt from interference except on ample 
grounds of suspicion of action not permitted to a neutral. 

(b) Mail or passenger vessels of belligerents, of similar 
lines, upon regular voyages, plying to neutral ports should 
be exempt from interference under such restrictions as 
will prevent their use for war purposes. 

(c) Mail or passenger vessels, similarly plying between 
belligerent ports, may, under such restrictions as the bel- 
ligerents may agree upon, be exempt from interference. 



Topic VI. 

What regulations should be made in regard to subsi- 
dized, auxiliary, or volunteer vessels in time of war? 

CONCLUSION. 

1. When a subsidized, auxiliary, or volunteer vessel is 
used for military purposes it must be in command of a 
duly commissioned officer in the military service of the 
government. 

2. When subsidized, auxiliary, or volunteer vessels, or 
vessels adapted for or liable to be incorporated into the 
military service of a belligerent, are in a neutral port in 
the character of commercial vessels at the outbreak of hos- 
tilities, the neutral may require that they immediately 
furnish satisfactory evidence whether they will assume a 
military or retain a commercial character. 

3. Subsidized, auxiliary, or volunteer vessels, or vessels 
adapted for or liable to be incorporated into the military 
service of a belligerent, on entering a neutral port after 
the outbreak of hostilities, may be required by the neutral 
immediately to make known whether their character is 
military or commercial. 

4. Until publicly changed in a home port, such vessels 
as have made known their character must retain as re- 
gards neutrals the character assumed in the neutral port. 

5. The exercise of belligerent authority toward a neu- 
tral by subsidized, auxiliary, or volunteer vessels is suf- 
ficient to establish their military character. 

DISCUSSION AND NOTES. 

General. — As a general proposition it may be main- 
tained that a state should be allowed to use its resources 
to protect itself ( in time of war and to preserve its exist- 
ence. On land -ar militia is regarded as a perfectly legiti- 
mate aid to the regular army, and in extreme cases the 
levies en masse are recognized as legitimate hostile forces. 
It is not reasonable to suppose that the resources of the 
belligerent on the sea will not be summoned to aid in the 
preservation of state existence. These resources are liable 
to attack. They will so far as possible be called into 

(105) 



106 SUBSIDIZED AND VOLUNTEER VESSELS. 

service. Horses, wagons, railroads, cars, telegraphs, etc., 
are called into service on land; corresponding agencies 
will be called into service on the sea. 

The objection to the continuance of privateer ing? was 
largely due to the lack of government control over those 
engaged in the practice. This control is easily exercised 
over those aiding in military operations on land because 
a representative of the government is usually at hand to 
direct the movements. 

An equal degree of control may be exercised in the case 
of auxiliary, volunteer, and subsidized vessels maintained 
by a government, officered and manned by the paid ser- 
vants of that government, and operated under its direc- 
tion. The use of such vessels is a matter of great im- 
portance, and there seems to be no reasonable objection 
to their employment for any and all purposes of naval 
warfare, provided that the proper degree of government 
control is maintained. 

By the first division of the declaration of Paris, 1856, 
which, however, is only binding on the states parties 
thereto, "privateering is and remains abolished." Some 
writers hold that the use of auxiliary vessels, to cruise 
against an enemy's commerce, amounts to a practical abro- 
gation of this provision. For example, Funck-Brentano 
in 1894 maintained that the first article of the declaration 
of Paris is practically obsolete. Speaking of the Turco- 
Kussian war of 1877 and the Russian volunteer navy he 
said : 

Depuis, tous les autres Etats maritimes encouragent leurs 
grandes societes de navigation a construire des paquebots sus- 
ceptibles d'etre transformed en croiseurs en temps de guerre. 
C'est en fait l'abolition de l'article l er de la declaration de Paris, 
qui lui-meme abolissait la course. Les noms seuls sont changes ; 
la guerre maritime privee prendra le nom de guerre maritime 
publiqne, les corsaires s'appelleront des croiseurs, les lettres de 
marque seront remplacees par des patentes de commission et les 
capitaines corsaires deviendront des capitaines commissionnes. 
(1 Revue genprale de droit international public, p. 328.) 

To hold with Funk-Brentano, and those who take more 
or less the same view, is to lose sight of the essential char- 
acteristic of a privateer; to wit, a vessel not maintained 



RECENT BRITISH DISCUSSION. 107 

by the government but operating for private gain; sanc- 
tioned by the government, it is true, but subject to only a 
limited degree of governmental control. 

Recent British discussion. — In April, 1903, a British 
royal commission on supply of food and raw material in 
time of war was appointed by King Edward : 

To inquire into the conditions affecting the importation of food 
and raw material into the United Kingdom of Great Britain and 
Ireland in time of war, and into the amount of the reserves of 
such supplies existing in the country at any given period ; and 
to advise whether it is desirable to adopt any measures, in addi- 
tion to the maintenance of a strong fleet, by which such supplies 
can be better secured and violent fluctuations avoided. (Keport 
of Commission, Vol. I, p. ix.) 

Professor Holland, in the report of this commission 
(App. XXVIII, Vol. Ill, p. 265), says: 

Under the term "privateers" are, however, not included com- 
missioned vessels, commanded by naval officers, under such con- 
ditions as would apply, e. g., to the Eussian "volunteer fleet," or 
to the specially constructed liners which are subsidized, with a 
view to war, by Great Britain and other powers. 

In question 6717 of the commission, Lord Balfour raises 
the point of difference between a privateer and a vessel of 
the volunteer fleet. He says : 

The essence of that distinction is this, is it not, that although 
a private person may fit out a ship, or a merchant ship may be 
fitted out as a privateer, they must go to sea under the orders 
and by the instructions, and on the authority, of the government, 
whose subjects they are? 

Professor Holland replies : 

It must be a little more than that. They must have naval 
officers on board, and it is not a private venture for private gain 
as the old privateer used to be. The old privateer had a govern- 
ment commission, but their object was private gain, whereas the 
modern volunteer fleet and the modern subsidized ships really ? 
become part of the navy when war breaks out. 

Of privateering, Professor Westlake, in his reply to the 
royal commission on food supply, says : 

The second point mentioned in your letter of 14th August was 
"whether the practice of privateering is likely to be revived." 

A privateer was a privatety owned ship, furnished with a com- 
mission of war empowering her to act in all warlike operations, 



108 SUBSIDIZED AND VOLUNTEER VESSELS. 

but usually confining herself to action against commerce, and 
usually acting not under state command but independently, 
though subject to state control. The declaration of Paris in 
abolishing privateering (la course) does not state against what 
parts of this description it is directed, but the regulations for 
the Russian volunteer fleet and those for the mail steamers sub- 
sidized by Frauce and England testify to an understanding that 
the employment of privately owned ships in war under state 
command is not unlawful. The regulations for the Prussian 
volunteer fleet in 1870 contemplated independent action by pri- 
vately owned ships against the enemy's ships of war, and Lord 
Granville declared himself unable to object to the plan. If a 
privately owned ship acts under state command, it seems im- 
possible to deny to her state the right to order her to attack or 
visit a merchantman as well as to attack a ship of war. There 
remains the independent action of a privately owned ship against 
commerce, and this appears to be what the declaration of Paris 
intended to abolish. I do not think it at all likely to be revived. 
(Report, Vol. Ill, App. XXIX, p. 270.) 

In the report — 

Sir J ohn Co lomb asks Professor Holland if — 

the mere fact of giviug commissions to the officers of merchant 
ships excludes them from being treated as privateers if they take 
part in war? 

Profesor Holland replied : 

"Their officers must be naval officers, not merely officers with 
commissions ad hoc, I conceive ; they must have been anteced- 
ently naval officers, or in the naval reserve, or something of that 
sort." 

6821. Q. Then they must have been previously officially con- 
nected with the naval service? — A. Yes, I conceive so; that is, 
before the war. It has never been laid down anywhere, but that 
I think is the supposition. 

6822. Q. It would be a questionable proceeding, at all events, 
to give commissions to men not naval officers? — A. Yes. 

6823. Q. Although they were captains of the mercantile ma- 
rine? — A. That would not, I think, satisfy opinion at all. 

The position of Professor Holland seems to be one 
which few governments would care to assume. It would 
seem to imply that some outside authority can properly 
deny the validity of a commission issued by a state and 
can determine the amount and character of the prior 
training or service requisite for the holding of a commis- 
sion. If, as Professor Holland holds, it is necessary that 



PRUSSIAN PLAN, 1870. 109 

the commissioned officers in command of such vessels as 
may be included in the auxiliary navy be officially con- 
nected with the naval service before the war, evidently in 
a long war it might become impossible to officer such 
vessels. It also might be questioned whether an officer of 
the mercantile marine or a commander of a great ocean 
liner might not be a person more fit in every way to com- 
mand an auxiliary vessel than a much less experienced 
man whose training had been in the naval reserve or 
similar force. 

The fact seems to be that what is to be demanded is not 
some particular qualification or experience in the officer, 
but absolute responsibility on the part of the government 
which gives him a commission. In other words, his acts 
must be acts of his government because his government 
has given him a commission. 

There seems to be, however, no valid objection to the employ- 
ment in war of vessels of the mercantile marine, provided that 
they shall have been duly incorporated into the belligerent navy, 
that their officers hold naval commissions, and that they are 
under naval orders and discipline. (Eeport Koyal Commission 
on Supply of Food, 1905, Vol. I, p. 22.) 

Prussian plan, 1870. — The following decree formed the 
basis of extended discussion at the time of the Franco - 
Prussian Avar : 

Royal Prussian decree of the 24th July, 1870, relative to the 
constitution of a voluntary naval force — 

On your representation I have approved the formation of a 
voluntary naval force under the following - form : 

1. To issue a summons to all German seamen and shipowners 
to place themselves, and their forces and ships suitable thereto, 
at the service of the Fatherland, and under the following condi- *) 
tions : -- 

(a) The vessels to be placed at the disposition of the service 
will be examined and taxed by a commission composed of two 
naval officers and one naval contractor as to their capabilities 
for the intended purpose. In this case the owner receives one- 
tenth of the price taxed as deposit, whereupon he has to hire the 
necessary volunteer crews. 

(&) Officers and crews enrolled in this way enter into the 
federal navy for the continuance of the war, and wear its uni- 
form and badge of rank, acknowledge its competency, and take 
oath to the articles of war. The officers receive a patent of their 
rank, and the assurance that, in case of extraordinary service 



110 SUBSIDIZED AND VOLUNTEER VESSELS. 

rendered, they can, at their request, be permanently established 
in the navy. Officers and men who are rendered, by this service, 
unfit to acquire a livelihood, without any fault on their side, 
receive a pension calculated at the standard of the royal federal 
navy. 

2. The hired ships sail under the federal flag. 

3. These will be armed by the federal royal navy, and fitted out 
for the service allotted to them. 

4. The ships destroyed in the service of their country will be 
paid for to their owners at the price taxed. If at the end of the 
war they can be restored to the owners uninjured, the sum paid 
as deposit is reckoned as hire. 

5. A premium will be paid to such ships as capture or destroy 
ships of the enemy, according to the following standard : For 
an iron-plated frigate 50,000 thalers, an iron-plated corvette or 
ram 30,000 thalers, an iron-plated battery 20,000 thalers, a large 
screw-vessel 15,000 thalers, a screw-vessel 10,000 thalers. These 
premiums will be paid the owners of the ships, to whom will be 
confided the distribution in proper proportions amongst the crew. 

6. The authorities for all communications on the subject are 
those of — 

(a) The docks of Wilhelmshaven, Kiel, and Danzig; 

(6) The Marine depots at Geestemunde and Stralsund, and 

(c) The sea captain Weickhmann, at Hamburgh. 

Further details must be hereafter elaborated. 

Wilhelm. 
Countersigned : 

Von Bi sma rck. 

Von Roon. 

Berlin, July 2J h 1870. 

The French ambassador requested the opinion of the 

British Government on "la creation de cette pretendue 

marine auxiliaire," maintaining that it was contrary to 

the declaration of Paris. The following was the British 

reply : 

Foreign Office, August 2}. 1870. 

M. l'Ambassadeur : Your excellency, in your letter of the 3d of 
August, requested to be made acquainted with the opinion that 
the law officers of the Crown might give on a notification issued 
by the Prussian Government on the 24th July last, for engaging 
ships privately armed in the war service of the North German 
Confederation. 

At that time I was not in possession of a copy of that notifica- 
tion, and I informed you that I would call upon Her Majesty's 
ambassador at Berlin to procure one. 

In the meantime, however, and indeed on the same day, namely, 
the 20th of this month, that your excellency left at this office a 



PRUSSIAN PLAN, 1870 111 

note veroale on the same subject, one of the members of the diplo- 
matic body at this court gave me a copy of the notification, and 
I thereupon referred the matter without delay to the law officers 
of the Crown. 

I have now received their opinion, of which, in compliance with 
your request, I have the honor to state to you the substance. 

They advise me that there are, in their opinion, substantial dis- 
tinctions between the proposed naval volunteer force sanctioned 
by the Prussian Government and the system of privateering, 
which, under the designation of " la course," the declaration of 
Paris was intended to suppress. 

The law officers say that, as far as they can judge, the vessels 
referred to in the notification of the 24th July will be for all 
intents and purposes in the service of the Prussian Government, 
and the crews will be under the same discipline as the crews on 
board vessels belonging permanently to the federal navy. 

This being the case now, and as long as it continues to be so, 
the law officers consider that Her Majesty's Government can not 
object to the decree of the Prussian Government as infringing 
the declaration of Paris. 

Her Majesty's Government will, however, with reference to the 
Prussian notification, call the attention of the Prussian Govern- 
ment to the declaration of Paris, and will express their hope and 
belief that Prussia will take care to prevent by stringent instruc- 
tions any breach of that declaration. I am, etc. 

Granville. 

(61 British State Papers, pp. 692, 694.) 

HalP s opinion of the Prussian plan for a volunteer navy 
in 1870 shows that the safeguards of that plan were not 
sufficient. Reviewing the matter, he says: 

A measure taken by Prussia during the Franco-German war of 
1870 opens a rather delicate question as to the scope of the en- 
gagement not to employ privateers by which the signatories of 
the declaration of Paris are bound. In August of that year the 
creation of a volunteer navy was ordered by decree. The oAvners 
of vessels were invited to fit them out for attack on French ships 
of war, and large premiums for the destruction of any of the 
latter were offered. The crews of vessels belonging to the volun- 
teer navy were to be under naval discipline, but they were to be 
furnished by the owners of the ships ; the officers were to be mer- 
chant seamen, wearing the same uniform as naval officers, and 
provided with temporary commissions, but not forming part of, 
or attached to, the navy in any way, though capable of receiving 
a commission in it as a reward for exceptional services ; the ves- 
sels were to sail under the flag of the North German navy. The 
French Government protested against the employment of private 
vessels in this manner as an evasion of the declaration of Paris, 



112 SUBSIDIZED AND VOLUNTEER VESSELS. 

and addressed a dispatch on the subject to the Government of 
England. The matter was laid before the law officers of the 
Crown, and they reported that there were substantial differences 
between a volunteer navy as proposed by the Prussian Govern- 
ment and the privateers which it was the object of the declara- 
tion to suppress. Lord Granville in consequence declared himself 
unable to make any objection to the intended measure on the 
ground of its being a violation of the engagement into which 
Prussia had entered. Nevertheless it hardly seems to be clear 
that the differences, even though substantial, between privateers 
and a volunteer navy organized in the above manner would neces- 
sarily be always of a kind to prevent the two from being identical 
in all important respects. In both the armament is fitted out by 
persons whose motive is wish for gain ; in both the crews and 
officers are employed by them, and work, therefore, primarily 
rather in their interests than in those of the nation. The differ- 
ence that in the particular case of the Prussian volunteer navy 
attacks upon men-of-war were alone contemplated was accidental 
and would have been temporary. At the beginning of the war 
Prussia announced her intention not to capture private property at 
sea in the hope of forcing France to spare the commerce which she 
was herself unable to protect. If the war had been continued for 
any length of time after January, 1871, when this announcement 
was withdrawn, and if a volunteer navy had in fact been formed, 
it would of course have been authorized to capture private prop- 
erty ; and there is no reason to suppose that any state acting 
upon the custom of seizing private property would make a dis- 
tinction between public and private vessels in the powers given 
to its volunteer navy. The sole real difference between privateers 
and a volunteer navy is, then, that the latter is under naval dis- 
cipline, and it is not evident why privateers should not also be 
subjected to it. It can not be supposed that the declaration of 
Paris was merely intended to put down the use of privateers gov- 
erned by the precise regulations customary up to that time. 
Privateering was abandoned because it was . thought that no 
armaments maintained at private cost, with the object of private 
gain, and often necessarily for a long time together beyond the 
reach of the regular naval forces of the state, could be kept 
under proper control. Whether this belief is well founded or not 
is another matter. If the organization intended to be given to 
the Prussian volunteer navy did not possess sufficient safeguards, 
some analogous organization no doubt can be procured which 
would provide them. If so, there could be no objection on moral 
grounds to its use ; but unless a volunteer navy were brought 
into closer connection with the state than seems to have been the 
case in the Prussian project it would be difficult to show as a 
mere question of theory that its establishment did not constitute 
an evasion of the declaration of Paris. (International Law, 5th 
ed., p. 527.) 



LATE PLANS. 113 

Vermes, after explaining some of the earlier discussions 
and considering particularly the Prussian proposition of 
1870, offers the following opinion : 

Le caractere legal d'une marine vdlontaire depend comme celle 
d'une troupe armee, du lien plus ou moins etroit qui Tunit au 
gouvernement et des garanties qu'elle presente pour l'observation 
des lois de la guerre, sous l'autorite d'un commandant a meme 
de se rendre compte de sa responsabilite et de remplir ses devoirs. 
II faut reconnaitre que les navires de la "freiwillige Seewehr" 
repondent a la definition generalement donnee du navire de 
guerre ; celui qui appartient a flotte est soumis a un com- 
mandant militaire et possede un equipage organise militairement. 
Les proprietaires des navires f ournissent ceux-ci ; mais les bati- 
ments une fois entres au service, ils n'ont plus le droit d'en dis- 
poser : ils regoivent seulement comme loyer la prime convenue 
prealablement et dedommagement en cas de perte des navires. 
En principe, toute force de guerre commissionnee au service de 
l'Etat fait partie de ses forces militaires, sans avoir egard a la 
condition anterieure du navire et de son equipage, au fait qu'ils 
ont ou non appartenu auparavant a la flotte marchande, qu'ils 
sont attaches actuellement a la flotte de guerre, a temps ou pour 
toujours. (I Les lois de la guerre et la neutralite, p. 103.) 

Later flans. — Several states have volunteer, auxiliary, 
or subsidized vessels at the present time. The conditions 
under which these vessels are bound to the respective 
states vary and the obligations resting on the vessels also 
vary. 

Russia, fearing a possible conflict in consequence of the 
situation in the East in 1877-78, considering that her 
regular fleet would not be adequate and that her merchant 
marine did not possess vessels readily convertible into ves- 
sels suitable for warlike purposes, readily adopted the plan 
of incorporating into the naval force certain vessels pur- 
chased by a private association of patriotic citizens. These 
vessels were to be under the control of the naval authori- 
ties and to be officered by naval commanders. The cap- 
tain and at least one other officer on each ship is a regular 
imperial commissioned officer. These vessels are equipped 
so as to be convertible at once into vessels for warlike use. 
In time of peace these vessels are principally engaged in 
public service, though they fly the merchant flag and are 
privately owned. 

18949 — -8 



114 SUBSIDIZED AND VOLUNTEER VESSELS. 

Speaking of the difficulties in determining the purpose 
for which vessels are intended, Hall says : 

Experts are perfectly able to distinguish vessels built prima- 
rily for warlike use ; there would, therefore, be little practical 
difficulty in preventing their exit from neutral ports, and there 
is no reason for relieving a neutral government from a duty which 
it can easily perform. But it is otherwise with many vessels 
primarily fitted for commerce. Perhaps few fast ships are 
altogether incapable of being so used as to inflict damage upon 
trade ; and there is at least one class of vessels which, on the 
principles urged by the Government of the United States in the 
case of the georgia, might fix a neutral state with international 
responsibility in spite of the exercise by it of the utmost vigi- 
lance. Mail steamers of large size are fitted by their strength 
and build to receive, without much special adaptation, one or two 
guns of sufficient caliber to render the ships carrying them 
dangerous cruisers against merchantmen. These vessels, though 
of distinct character in their more marked forms, melt insensibly 
into other types, and it would be impossible to lay down a rule 
under which they could be prevented from being sold to a bellig- 
erent and transformed into constituent parts of an expedition 
immediately outside neutral waters without paralyzing the whole 
shipbuilding and ship-selling trade of the neutral country. 
(Hall's International Law, 5th ed., p. 616.) 

Pradier Fodere explains the idea of the volunteer or 
auxiliary navy as follows : 

La marine volontaire ou flotte auxiliaire. — La marine volon- 
taire, ou flotte auxiliaire, se compose de navires appartenant a 
des particuliers, fournis librement par eux, incorpores pendant 
une guerre dans la flotte militaire, ou s'y rattachant etroite- 
ment, et verses momentanement dans les forces navales de 
l'Etat. Elle est dite volontaire, parce que il est fait appel, pour 
sa creation, aux particuliers possesseurs de batiments aptes 
a etre utilises comme navires de guerre, ou comme transports. 
Ces particuliers mettent librement leurs navires a la disposi- 
tion du gouvernement, mais en conservent la propriety et en 
recrutent les equipages, selon les regies applicables au recrute- 
ment de la marine de commerce. Elle est appelee aussi flotte 
auxiliaire, parce que les navires prives dont elle se compose sont 
destines a r en forcer et a completer la flotte militaire de l'Etat, 
dont ils sont consideres et traites comme faisant parte inte- 
grant e. 

Les marines volontaires, ou flottes auxiliaires, qui augmentent 
ainsi les forces navales des Etats par contribution des particu- 
liers, paraissent reservees, aujourd'hui, a remplacer, en temps de 
guerre, les corsaires et si les belligerants qui les organisent sa- 



UNITED STATES COURT DECISIONS. 115 

vent eviter dans cette organization les justes griefs qui ont fait 
condamner les armements en course, elles constituent une mesure 
irreprochable, qui concilie le droit de la defense des faibles et 
la securite de la navigation pacifique. (VIII Droit international 
public, sec. 3102.) 

France has a direct arrangement with certain compa- 
nies whereby vessels are constructed on plans approved 
by the admiralty which make possible the conversion of 
these vessels into vessels for warlike use. The vessels 
are commanded by officers of the navy. At the opening 
of hostilities they may be incorporated in the war fleet. 

Great Britain in 1887 concluded agreements with sev- 
eral important steamship companies. In return for an 
annual subsidy these companies agree in time of war to 
turn over certain fast vessels at an appraised valuation 
and to build ships on plans approved by the admiralty. 
As the law officers of the British Crown were consulted in 
regard to the legality of the plans of Prussia for a volun- 
teer navy in 1870 it may be supposed that the agreement 
made in 1887 by the British Government does not fail to 
meet the requirements of legality. 

By the act of the United States of May 10, 1892, after 
specifications in regard to registration, tonnage, speed, 
ownership, etc., it is provided in section 4 as follows: 

That any steamship so registered under the provisions of this 
act may be taken and used by the United States as cruisers or 
transports upon payment to the owners of the fair actual value 
of the same at the time of the taking, and if there shall be a 
disagreement as to the fair actual value at the time of taking 
between the United States and the owners, then the same shall 
be determined by two impartial appraisers, one to be appointed 
by each of said parties, who, in case of disagreement, shall select 
a third, the award of any two of the three so chosen to be final 
and conclusive. (27 U. S. Statutes at Large, p. 27.) 

United States court decisions. — The general position 
of a subsidized Spanish vessel is set forth in the opinion 
rendered in regard to the Panama in 1900. There was a 
contract running between the owners of the vessel and 
the Spanish Government. 

By that contract, concluded between the Spanish Government 
and the Compania Transatlantica on November 18, 1886, and 
drawn up and printed in Spanish, the company bound itself to 



116 SUBSIDIZED AND VOLUNTEER VESSELS. 

establish and to maintain for twenty years various lines of mail 
steamships, one of which included Havana, New York, and o'ther 
ports of the United States and of Mexico ; and the Spanish Govern- 
ment agreed to pay certain subsidies to this company, and not to 
sibsidize other steamship lines between the same points. Among' 
the provisions of the contract, besides article 26, above quoted, 
were the following : 

By article 25, new ships of the West Indian line must be of 
iron, or of the material which experience may prove to be the 
best ; must have double-bottomed hulls, divided into water-tight 
compartments, with all the latest improvements known to the 
art of naval construction ; and "their deck and sides shall have 
the necessary strength to support the artillery that they are to 
mount." All the ships of that line must have a capacity for 500 
enlisted men on the orlop deck, and a convenient place for them 
on the main deck. The company, when beginning to build a new 
ship, shall submit to the minister of the colonies her plans as 
prepared for commercial and postal service. "The minister shall 
cause to be studied the measures that should be taken looking to 
the rapid mounting in time of war of pieces of artillery on board 
of said vessel ; and may compel the company to do such strength- 
ening of the hull as he may deem necessary for the possible 
mounting of that artillery ; said strengthening shall not be re- 
quired for a greater number than six pieces whose weight and 
whose force of recoil do not exceed those of a piece of 14 centi- 
meters." The plans of ships already built shall be submitted to 
the minister of marine, in order that he may cause to be studied 
the measures necessary to adapt them to war service ; and any 
changes that he may deem necessary or possible for that end 
shall be made by the company. But in both old and new ships 
the changes proposed by the ministry must be such as not to 
prejudice the commercial purposes of the vessels. 

By article 35, the vessels, with their engines, armaments, and 
other appurtenances, must be constantly maintained in good con- 
dition for service. 

By article 41, the officers and crews of the vessels, and, as far 
as possible, the engineers, shall be Spaniards. 

By article 49, the company may employ its vessels in the trans- 
portation of all classes of passengers and merchandise, and en- 
gage in all commercial operations that will not prejudice the 
services that it must render to the state. 

By article 60, when by order of the Government munitions of 
war shall be taken on board, the company may require that it 
shall be done in the manner and with the precautions necessary 
to avoid explosions and disasters. 

By article 64, in case of the suspension of the mail service by 
a naval war, or by hostilities in any of the seas or ports visited 
by the company's ships, the Government may take possession of 
them with their equipment and supplies, having a valuation of 



UNITED STATES COURT DECISIONS. 117 

the whole made by a commission composed to two persons 
selected by the Government, two by the company, and a fifth 
person chosen by those four ; at the termination of the war, the 
vessels with their equipment are to be returned to the company, 
and the Government is to pay to the company an indemnity for 
any diminution in their value, according to the opinion of the 
commission, and is also, for the time it has the vessels in its 
service, to pay 5 per cent on the valuation aforesaid. By article 
66, at the end of the war the Government may relieve the com- 
pany of the performance of the contract if the casualties of the 
war have disabled it from continuing the service. And by 
article 67, in extraordinary political circumstances, and though 
there be no naval war, the Government may charter one or more 
of the company's vessels, and in that event shall pay an indemnity 
estimated by the aforesaid commission. (176 U. S. Supreme 
Court Reports, 535.) 

In 1§98 the Spanish steamship Rita was captured by 
the United States converted auxiliary cruiser Yale, prior 
to April 30, 1898, the International Navigation Company 
steamship City o f Paris, which was under charter by the 
United States and by terms of the contract " under the i 
entire control of the senior officer on board." The Yale's 
company consisted of two regular officers of the United 
States Navy and a marine guard of 25 enlisted men, and 
269 officers and men doing duty on board and borne on 
the books of the ship but not commissioned by or enlisted 
in the service of the United States. The regularly en- , 
listed officers and men made claim that the officers and 
crew of the Yale borne on the books but not enlisted were 
not entitled to a share of the prize money. 

Judge Brawley, in the district court, district of South 
Carolina, October 13, 1898. held that the Yale was, 
according to the act of 1862, in the class " any armed 
vessel in the service of the United States " not of the 
regular navy and not a privateer, and that, as in all 
cases falling in this class, the statute prescribes that " the 
whole amount decreed to the captors shall be divided 
among the ship's company," and further, the judge de- 
clares in regard to the non-enlisted portion of the ship's 
company that — 

If they were not " in the service " of the Government while 
performing that mission, they incurred the hazard of being con- 
sidered as pirates. 



118 SUBSIDIZED AND VOLUNTEER VESSELS. 

and — 

that, by fair interpretation of the statute, all of the ship's com- 
pany doing" duty on board and borne upon the books are entitled 
as of right to share in the prize money in proportion to their 
pay, and a decree will be entered accordingly. (89 Federal Re- 
porter, 763.) 

Japanese court decisions. — In a judgment before the 
higher prize courts at Sasebo, Japan, on a protest in the 
case of the steamer j ^rqufi* April 25, 1905, an opinion is 
given on certain subsidized vessels. 

In considering the nature of the vessels belonging to the 
Chinese Eastern Railway Company it is to be noted that the 
managers of the navigation department of the said company are 
naval officers or other government officials. One manager at 
Vladivostock is. a commander in the navy, and the other a special 
service official of the department of finance. A perusal of that 
part of the statistical work entitled "River Vessels in Russian 
Asia," published by the Russian department of communications, 
which gives the statistics of vessels in the waters of the Amur 
region, shows that there are in all 163 steamers and 198 other 
vessels. It is stated that of these, 45 steamers and 66 other ves- 
sels are owned by the Government. Considering now the several 
owners of these steamers and other vessels, we can not get the 
total number of Government vessels mentioned above unless the 
19 steamers and 60 other vessels belonging to the Chinese Eastern 
Railway Company are included among the Government vessels. 
The indemnity for damages caused the Chinese Eastern Railway 
Company by the Boxer troubles in China in 1900 was claimed, not 
as due to Russian subjects, but as due to the Russian Government 
itself. Considering the above facts, a vessel like the steamer in 
question which belongs to the said company must be recognized 
as a Government vessel, the property of the Russian Government. 
Such being the case, although the imperial ordinance No. 20 of 
1904, superficially considered, appears to exempt from seizure 
Russian merchant vessels in general, it was promulgated chiefly 
to prevent the distress which would be caused by the seizure of 
merchant vessels owned by Russian subjects which were anchored 
in the ports of the Empire of Japan, and those which before the 
enforcement of the ordinance had left foreign ports bound for 
ports in Japan, which could not have known of the fact that war 
had begun. There is no need, therefore, of argument to show 
that a vessel like this which is owned by the Government is not 
entitled to benefit by the clemency of the imperial ordinance. 

Method of commissioning. — In Great Britain, during 
the Russo-Japanese war, it was claimed that auxiliary 



METHODS OF COMMISSIONING. 119 

vessels could be commissioned only within the ports of the 
belligerents. 

It is generally held that jurisdiction over the status 
and internal economy of a vessel is according to domestic 
law. The belligerent has a right to capture his enemy's 
ships, whether or not commissioned as war vessels. The 
vessels subsidized, or belonging to the volunteer or auxil- 
iary navy, being liable to military service in futuro are 
certainly liable to capture in prcesenti. When such ves- 
sels shall attack the enemy is not a matter for interna- 
tional law to determine. They are liable to capture at 
any time after the outbreak of hostilities. They may cor- 
respondingly defend themselves from attack. The main 
restriction, so far as the belligerents are concerned, is that 
the vessels shall be under full responsible control. 

In an interview during the warm agitation in regard to 
the action of the Smolensk and Peterburg. of the Russian 
volunteer fleet, in July, 1904, M. Xeratoff, of the Russian 
foreign office, was reported as saying of the commission- 
ing of these vessels : 

The questions as to the place where this transformation should 
be made had not been settled when certain ships passed the Dar- 
danelles as merchantmen, otherwise the Turkish authorities 
would not have let them through. The commanders of the Peter- 
burg and Smolensk were wrong in stopping neutral vessels with- 
out waiting for further orders. They erred from excess of zeal, 
but we can understand the state of mind of our officers on seeing 
ships pass that were no doubt going to carry out documents and 
ammunition to Japan. In any case, we shall make apologies if 
it turns out that our suspicions were unfounded. As regards the 
question of principle involved in the passage of the Dardanelles 
by auxiliary cruisers, this is a matter for discussion. We have 
consulted Professor Martens, who is here. But legal considera- 
tions will play a secondary part in this affair. The incident is 
rather political than diplomatic. We shall continue to display a 
conciliatory spirit, but our auxiliary cruisers will not be with- 
drawn from the Eed Sea. (The Times, London, July 26, 1904.) 

At the same time the Russian foreign office gave assur- 
ance that the volunteer fleet would not again "be utilized 
for visitation and seizure of neutral ships in the Red Sea." 

If Russia maintained that these vessels, the Smolensk 
and Peterburg, were not Avar vessels, then they had no 
right to make captures but had full right under treaty to 



120 SUBSIDIZED AND VOLUNTEER VESSELS. 

pass the Dardanelles. If they were war vessels only after 
raising their flag after passing the Dardanelles, then it 
might be equally proper for vessels of the volunteer navy 
of another state to pass in through the Dardanelles under 
a merchant flag and raise the war standard after entering 
the Black Sea. Doubtless Russia would be reluctant to 
admit this practice. 

Mr. Balfour, in the House of Commons, on July 28, 
1904, explaining the attitude of Great Britain, said of the 
action of the Russian vessels which passed the Dardanelles 
and captured the Malacca: 

We took the strongest possible exception to that course on the 
ground that no ship of war could issue from the Black Sea, and 
that in our judgment the members of the volunteer fleet, if they 
issued from the Black Sea and took belligerent action, either had 
no right to issue or no right to take that action. 

In the same speech he said : 

We have received assurances that the volunteer ships are to be 
withdrawn from the Bed Sea ; and I have little doubt that there 
will be no further desire on the part of the Russian Government 
to employ them as cruisers. 

The sale of a vessel strictly as a commercial transaction 
by a neutral citizen may be made by any party to any 
party. The government must not, however, be involved. 
In a conference between Mr. Balfour, the prime minister, 
and the London Chamber of Commerce, on August 25. 
1904, Mr. Angier observed that — 

the Germans had sold to the Russians a considerable number of 
fine trading ships, and one of them had been converted into a 
war vessel, and had actually stopped one of our ships. That was 
a case of the Alabama over again. 

Mr. Balfoue. No ; this has has been carefully considered by 
the law officers and the Government. There can be no doubt that 
merchant ships may be sold by neutrals to any government, and 
that that government may turn these ships into cruisers if they 
please. I do not believe, in this respect, that we can complain of 
a breach of international law. (T7ie Times, London, August 26, 
1904.) 

Commander von Uslar, o f the German navy, says of the 
use of auxiliary war ships: 

Concerning the hitherto undisputed right of belligerents to equip 
trading steamers as auxiliary war ships everywhere, except in 



VARIOUS OPINIONS. 121 

territorial waters, England has, during the present war, endeav- 
ored to enforce her view that the belligerent can legally commis- 
sion auxiliary war ships only in his own harbors and not on the 
high seas. That the general acceptance of this principle would 
be very beneficial to English interests, but prejudicial to states 
with small colonial possessions, is very evident ; but it does not 
accord with the principle of international law that the state has 
unlimited power and jurisdiction on the high seas over all vessels 
sailing under its flag. In the interests of all the demand is justi- 
fied that an auxiliary war vessel shall not change its character 
during the war. (181 North American Review, August, 1905, p. 
184.) 

The auxiliary navy has been put by some writers in the 
same category as the militia on land and has been regarded 
as subject to similar regulations. Some maintain that it 
should be enrolled for state service under responsible offi- 
cers, ba paid from the public treasury and not in propor- 
tion to the captures made, and that the vessels should also 
be paid for fixed periods and not in proportion to the 
captures made by them. In case of loss of a vessel in 
war a liberal price should be paid therefor. 

It hjas been suggested that a distinction might be made 
according to the service rendered. If a vessel of the vol- 
unteer navy confined its services to the transport of troops, 
coal, and the like, its action would be legitimate; if it 
pursued and captured private property, it would be en- 
gaged in privateering forbidden by the first article of the 
treaty of Paris. L 1856 (4 Revue Generale de Droit Interna- 
tional Public, 1897, p. 696). The above is not the gener- 
ally accepted view. It has been maintained also that the 
private ownership of vessels which are to engage in war 
should not be permitted. The distinction between the 
transport by one vessel of fuel which would enable another 
vessel to pursue and capture an enemy vessel and the pur- 
suit of the enemy vessel by the transport is not the point 
to be considered in distinguishing a privateer from a pub- 
lic war vessel, but rather the conditions under which the 
act takes place. The question is rather one of govern- 
mental naval control and conformity to the usages of war. 
That a vessel used by a belligerent for hostile purposes 
must be owned by the state is not a matter of great im- 
portance and is not easily determined in time of war. It 



122 SUBSIDIZED AND VOLUNTEER VESSELS. 

would not be contended that horses or other means of 
warfare might not be loaned by private persons for serv- 
ice in war on land. 

Hall gives a somewhat full statement of the English 
attitude in regard to what constitutes a public vessel : 

Public vessels of the state consist in ships of war, in govern- 
ment ships not armed as vessels of war, such as royal or ad- 
miralty yachts, transports, or storeships, and in vessels tem- 
porarily employed, whether as transports or otherwise, pro- 
vided that they are used for public purposes only, that they are 
commanded by an officer holding" such a commission as will suf- 
fice to render the ship a public vessel by the law of his state, and 
that they satisfy other conditions which may be required by that 
law. The character of a vessel professing to be public is usually 
evidenced by the flag and pendant which she carries, and if neces- 
sary by firing a gun. When in the absence of, or notwithstand- 
ing, these proofs any doubt is entertained as to the legitimateness 
of her claim, the statement of the commander on his word of 
honor that the vessel is public is often accepted, but the admis- 
sion of such statement as proof is a matter of courtesy. On the 
other hand, subject to an exception which will be indicated 
directly, the commission under which the commander acts must 
necessarily be received as conclusive, it being a direct attestation 
of the character of the vessel made by the competent authority 
within the state itself. A fortiori attestation made by the gov- 
ernment itself is a bar to all further inquiry. (International 
Law, 5th ed., p. 161.) 

The act of commissioning a vessel is an act of sovereignty, and 
no act of sovereignty can be done within the dominions of an- 
other sovereign without his express or tacit permission. Without 
such leave a commission can only acquire value as against the 
state in which a vessel has been bought, or has been built and 
fitted out, at the moment when she issues from the territorial 
waters. Up to that time, though invested with minor privileges, 
she is far, if she be a ship of war, from enjoying the full advan- 
tages of a public character. It is needless to say that, on the 
other hand, if the vessel reenters the territorial waters five min- 
utes after she has left them she does so with all the privileges of 
a public vessel of her state. It is to be noted that tacit leave to 
commission a ship can not be lightly supposed. A state must 
always be presumed to be jealous of its rights of sovereignty, 
and either strong circumstances implying recognition in the par- 
ticular case, or the general practice of the state itself, must be 
adduced before the presumption can be displaced. (Ibid, p. 163.) 

Need of established character. — It is necessary that 
there should be some mark bv which the character of a 



SUMMARY. 123 

vessel may be established so far as a neutral may be con- 
cerned. It is not in any way reasonable to expect that 
a vessel may one day fly a merchant flag and the next 
day that of a ship of war and the following day that of a 
merchant vessel again. If it is proper for a vessel to sail 
from a port as a merchant vessel and on the high sea to 
assume the character of a war vessel, would it not be pos- 
sible to reverse the process and make such changes as 
frequently as might serve a belligerent's purpose. 

It is certain that acts of war on the sea should be con- 
fined to war vessels and that merchant vessels should not 
visit, search, or capture merchant vessels of an enemy or 
of a neutral. Under certain conditions a war vessel may, 
however, do these things. A merchant vessel is subject 
to the jurisdiction of the port in which it may be, so far 
as the local regulations require. A vessel of war is to a 
large extent exempt from local jurisdiction. There is 
little restriction upon the nature of articles which a mer- 
chant vessel may take on board. A war vessel of a bellig- 
erent in time of hostilities may not in a neutral port do 
certain acts or take certain articles on board which would 
be allowed in time of peace or to a merchant vessel in time 
of war. 

If no restrictions are made, the neutrals may through 
ignorance of the character of a vessel furnish it with sup- 
plies of a forbidden amount or character. A vessel which 
could change its character at will might enter a neutral 
port repeatedly as a merchant vessel and after each de- 
parture again assume a warlike character, thus making of 
a neutral port a base. Of course, it is not reasonable to 
expect that such acts would be tolerated. 

Summary. — There seem to be certain general considera- 
tions which should guide in the regulation of the use of 
subsidized, auxiliary, or volunteer vessels : 

1. Such vessels should be during the war public vessels 
under regularly commissioned officers in order that the 
principle of Article I of the declaration of Paris, 1856, 
may be regarded. They should be incorporated in the 
navy. 

2. The neutral in whose port such vessel may be or 
within whose port such, vessel may come is entitled to 



124 SUBSIDIZED AND VOLUNTEER VESSELS. 

know the character of the vessel in order that the laws 
of neutrality in furnishing supplies, etc., may be observed. 

3. The character once assumed should not be changed 
except under adequate restrictions in order that reason- 
able security may be given to the neutral in his relation 
to the vessel. 

Conclusions. — From the foregoing it is evident that the 
use, for all purposes of naval warfare, of auxiliary, sub- 
sidized, or volunteer vessels, regularly incorporated in 
the naval forces of a country, is in accord with general 
opinion and practice, and that this addition to their regu- 
lar naval forces in time of war is contemplated by nearly 
all if not all the principal maritime nations. In fact 
auxiliaries have been so used in all recent naval wars. To 
secure for subsidized, auxiliarv, and volunteer vessels the 
proper status in time of war, the following regulations 
are proposed : 

1. When a subsidized, auxiliary, or volunteer vessel is 
used for military purposes it must be in command of a 
duly commissioned officer in the military service of the 
government. 

2. When subsidized, auxiliary , or volunteer vessels, or 
vessels adapted for or liable to be incorporated into the 
military service of a belligerent, are in a neutral port in 
the character of commercial vessels at the outbreak of 
hostilities, the neutral may require that they immediately 
furnish satisfactory evidence whether they will assume 
a military or retain a commercial character. 

3. Subsidized, auxiliary, or volunteer vessels, or vessels 
adapted for or liable to be incorporated into the military 
service of a belligerent, on entering a neutral port after 
the outbreak of hostilities, may be required by the neutral 
immediately to make known whether their character is 
military or commercial. 

4. Until publicly changed in a home port, such vessels 
as have made known their character must retain as re- 
gards neutrals the character assumed in the neutral port. 

5. The exercise of belligerent authority toward a neu- 
tral by subsidized, auxiliary, or volunteer vessels is suf- 
ficient to establish their military character. 







APPENDIX. fa 



( ' INVENTION FOR THE AMELIORATION OF 

THE CONDITION OF THE/WOUNDED 

IN ARMIES IN THE FIELD, 

GENEVA, 1906. 



> 










APPENDIX. 



[Translation.] 



CONVENTION FOR THE AMELIORATION OF 
THE CONDITION OF THE .WOUNDED IN 
ARMIES IN THE FIELD. 



E A" 



His Majesty the Emperor of Germany. 
King of Prussia; His Excellency the Presi- 
dent of the Argentine Republic; His Maj- 
esty the Emperor of Austria, King of 
Bohemia, etc., and Apostolic King of Hun- 
gary; His Majesty the King of the Bel- 
gians; His Royal Highness the Prince of 
Bulgaria; His Excellency the President 
of the Republic of Chile; His Majesty the 
Emperor of China: His Majesty the King 
of the Belgians, Sovereign of the Congo 
Free State; His Majesty the Emperor of 
Corea; His Majesty the King of Denmark: 
His Majesty the King of Spain; the Presi- 
dent of the United States of America; the 
President of the United States of Bra- 
zil: the President of the United Mexi- 
can States; the President of the French 
Republic; His Majesty the King of the 
United Kingdom of Great Britain and 
Ireland, Emperor of India; His Majesty 
the King-of the Hellenes: the President of 
the Republic of Guatemala: the President 
of the Republic of Honduras; His Majesty 
the King of Italy; His Majesty the 
Emperor of Japan; His Royal Highness 
the Grand Duke of Luxemburg, Duke of 
Nassau; His Highness the Prince of Monte- 
negro; His Majesty the King of Norway: 
Her Majesty the Queen of the Nether- 
lands; the President of the Republic of 
Peru; His Imperial Majesty the Shah of 
Persia; His Majesty the King of Portugal 
and of the Algarves, etc.; His Majesty 
the King of Roumania; His Majesty the 
Emperor of All the Kussias; His Majesty 
the King of Servia; His Majesty the King 
of Siam; His Majesty the King of Sweden: 
the Swiss Federal Council; the President 
of the Oriental Republic of Uruguay, 

Being equally animated by the desire to 
lessen the inherent evils of warfare as far 
as is within their power, and wishing for 
this purpose to improve and supplement 
the provisions agreed upon at Geneva on 
August 22, 1864, for the amelioration of the 
condition of the wounded in armies in the 
field, 



CONVENTION POUB I.'ami'.I.IOIIATION DV 
sort HES BLESSES ET MALADES DANG I 1 - 
ARMEES EN CAMPAGNK. 

Sa Majeste l'Empereur d'Allemagne, 
Roi de Prusse; Son Excellence le Presi- 
dent de la Republique Argentine: 8a 
Majeste l'Empereur d'Autriche, Roi de 
Boheme, etc., et Roi Apostolique de Hon- 
orie; Sa Majeste le Roi des Beiges; Son 
Altesse Royale le Prince de Bulgarie; Son 
Excellence le President de la Republique 
du Chili; Sa Majeste l'Empereur de Chine: 
Sa Majeste le Roi des Beiges, Souverain de 
l'Etat independant du Congo; Sa Majeste 
l'Empereur de Coree; Sa Majeste le Roi de 
Danemark; Sa Majeste le Roi d'Espagne; 
le President des Etats-Unis d'Amerique: 
le President des Etats-Unis du Bresil: le 
President des ETats-Unis Mexicains: le 
President de la Republique Francaise; Sa 
Majeste le Roi du Royaume-Uni de la 
Grande-Bretagne et d'Irlande, Empereur 
des Indes; Sa Majeste le Roi des Hellene-: 
le President de la Republique de Guate- 
mala; le President de la Republique de 
Honduras; Sa Majeste le Roi d'ltalie; Sa 
Majeste l'Empereur du Japon; Son Altesse 
Royale le Grand-Due de Luxembourg, 
Due de Nassau; Son Altesse le Prince 
de Montenegro; Sa Majeste le Roi «'e 
Norvege; Sa Majeste la Reine des Pays- 
Bas; le President de la Republique du 
Perou; Sa Majeste Imperiale le Schah de 
Perse: Sa Majeste le Roi de Portugal et dee 
Algarves, etc.: Sa Majeste le Roi de Rou- 
manie; Sa Majeste l'Empereur de Toutes 
les Russies: Sa Majeste le Roi de Serbie; 
Sa Majeste le Roi de Siam; Sa Majeste le 
Roi de Suede; le Conseil Federal Suis-e: 
le President de la Republique Orientale de 
1' Uruguay. 



Egalemeut amines du desir de diminuer, 
autant qu'il depend d'eux, les niaux inse- 
parables de la guerre et voulant, dans ce 
but, perfectionner et completer les dispo- 
sitions convenues a GeaeTe, le 22 aout 
1864, pour l'amelioration du sort des mili- 
taires blesses ou malades dans les armees en 
campagne; 



(l&T) 



128 



Have decided to conclude a new conven- 
tion to that effect, and have appointed as 
their plenipotentiaries, to wit: 

His Majesty the Emperor of Germany, 
King of Prussia: His Excellency the 
Chamberlain and Actual Privy Councilor 
A. de BQlow, Envoy Extraordinary and 
Minister Plenipotentiary at Berne; Gen- 
eral of Brigade Baron de Manteuffel; 
Medical Inspector and Bargeon-General 
Dr. Villaret (with rank of general of bri- 
gade); Dr. Zorn, Privy Councilor of .lu>- 
tice, ordinary professor of law at the Uni- 
versity of Bonn, Solicitor of the Crown; 

His Excellency the President of the 
Argentine Republic: His Excellency Mi. 
Enrique B. Moreno, Envoy Extraordinary 
and Minister Plenipotentiary at Berne; 
Mr. Molina Salas, Consul-General in Switz- 
erland; 

His Majesty the Emperor of Austria, 
King of Bohemia, etc., and Apostolic 
King of Hungary: His Excellency Baron 
Heidler de Egeregg et Syrgenstein, Actual 
Privy Councilor, Envoy Extraordinary and 
Minister Plenipotentiary at Berne; 

His Majesty the King of the Belgians; 
Colonel of Staff Count de T'Serclaes, Chief 
of Staff of the Fourth -Military District; 

His Royal Highness the Prince of Bul- 
garia; Dr. Marin Rousseff, Chief Medical 
Officer; Captain of Staff Boris Sinnanoff; 

His Excellency the President of the Re- 
public of Chile: Mr. Augustin Edwards. 
Envoy Extraordinary and .Minister Pleni- 
potentiary; 

His Majesty tin- Emperor of China: 
His Excellency Mr. Lou Tseng Tsiang. 
Envoy Extraordinary and Minister Pleni- 
potentiary to the Hague; 

His Majesty the King of the Belgians, 
Sovereign of the Congo Free State: Colonel 
of Staff Count de T'Serclaes, Chief of staff 
of the Fourth Military District of Belgium: 

Bis Majesty the Emperor of Corea: His 
Excellency Mr. Tsunetada Kato, Envoy 

Extraordinary and Minister Plenipotenti- 
ary of Japan to Brussels; 

His Majesty the King of Denmark: 
Mr. Laub, Surgeon-General. Chief of the 
Medical Corps of the Army: 

His Majesty the King of Spain: His Ex- 
cellency Mr. Silverio de Baguer y Corsi, 
Count of Baguer, Minister Resident; 

The President of the United States of 
America: Mr. William Cary Sanger, former 
Assistant Secretary of War of the United 



Ont resolu de conclure one uouvelle Con- 
vention a cet effet, et ont nomine pour 
leu is Plenipotentiaires, savoir: 

Sa Majeste* l'Empereur d'Allemagne, 
Roi de Prusse: S. E. M. le chanibellan et 
conseiller intime actuel A. de Biilow, en- 
voye extraordinaire et ministre plenipo- 
tentiaire a Berne; M. le general de bri- 
gade baron de Manteuffel; 31. le medecin- 
inspecteur, medecin general D r Villaret 
i'avir rang de general de brigade); M. le 
D* Zorn, conseiller intime de justice, pro- 
[< --.iir ordinaire de droit a l'Universite de 
Bonn, syndic de la couronne; 

Son Excellence le President de la Re- 
publique Argentine: S. E. M. Enrique B. 
Moreno, envoye extraordinaire et ministre 
plenipotentiaire a Berne; M. Molina Salas. 
consul general en Suisse; 

Sa Majeste L'Empereur d'Autriche, Koi 
de Bohcme, etc., et Koi Apostolique de 
Hongrie: 8. E. M. le baron Heidler de 
Egeregg et Syrgenstein, conseiller intime 
actuel, envoye extraordinaire et ministre 
plenipotentiaire a Berne; 

Sa Majeste le Roi des Beiges: M. le 
colonel d'etat-major comte de T'Serclaes, 
chef d'etat-ruajor de la 4 mt> circonscription 
militaire; 

Son Altesse Royale le Prince de Bulgaria: 
M.le D' Marin Rousseff, directeur du ser- 
\ ice sanitaire; M. le capitaine d'etat-major 
Boris Sinnanoff; 

Son Excellence le President de la Re- 
publique du Chili: M. Agustin Edwards, 
envoye extraordinaire et ministre pleni- 
potentiaire; 

Sa Majeste l'Empereur de Chine: S. E. 
M. Lou Tseng Tsiang, envoye extraordi- 
naire et ministre plenipotentiaire a La 
Have: 

Sa Majeste le Roi des Beiges, Souverain 
de t'Etat independant du Congo: M. le 
colonel d'etat-major comte de T'Serclaes, 
chef d'etat-major de la 4 nK ' circonscription 
militaire de Belgique; 

Sa Majeste - l'Empereur de Coree: S. E. 
M. Kato Tsunetada, envoye extraordinaire 
et ministre plenipotentiaire du Japon a 
Bruxelles; 

Sa Majeste le Roi de Danemark: M. 
Laub, inedecin general, chef du corps des 
medecins de Fannee; 

Sa Majeste le Roi d'Espagne: S. E. M. 
Silverio de Baguer y Corsi, comte de 
Baguer, ministre resident; 

Le President des Etats-Unisd'Amerique: 
M. William Cary Sanger, ancien sous- 
secretaire de la guerre des Ktats-Unis 



129 



States of America; Rear Admiral Charlie S. 
Sperry, President of the Naval War Col- 
lege; Brigadier-General George B. Davis, 
Judge- Advocate-General of the Army; 
Brigadier-General Robert M. O'Reilly, 
Surgeon-General of the Army; 

The President of the United States of 
Brazil: Dr. Carlos Lemgruber-Kropf, 
Charge d' Affaires at Berne; Colonel of 
Engineers Roberto Trompowski, Leitao 
d'Almeida, Military Attache to the Bra- 
zilian Legation at Berne; 

The President of the United Mexican 
States: General of Brigade Jose Maria 
Perez; 

The President of the French Republic: 
His Excellency Mr. Revoil, Ambassador to 
Berne; Mr. Louis Renault, Member of the 
Institute of France, Minister Plenipoten- 
tiary, Jurisconsult of the Ministry of For- 
eign Affairs, Professor in the Faculty of 
Law at Paris; Colonel Olivier of Reserve 
Artillery; Chief Surgeon Pauzat of the 
Second Class; 

His Majesty the King of the United 
Kingdom of Great Britain and Ireland, 
Emperor of India: Major-General Sir John 
Charles Ardagh, K. C. M. G., K. C. L. E., 
C. B.; Professor Thomas Erskine Holland, 
K. C, D. C. L.; Sir John Farley, C. B.; 
Lieutenant-Colonel William Grant Mac- 
pherson, C. M. G., R. A. M. C; 

His Majesty the King of the Hellenes: 
Mr. Michel Kebedgy, Professor of Inter- 
national Law at the University of Berne; 

The President of the Republic of Guate- 
mala: Mr. Manuel Arroyo, Charge d* Af- 
faires at Paris; Mr. Henri Wiswald, Con- 
sul-General to Berne, residing at Geneva; 

The President of the Republic of Hon- 
duras: Mr. Oscar Hoepfl, Consul-General 
to Berne: 

His Majesty the King of Italy: Marquis 
Roger Maurigi di Castel Maurigi, Colonel 
in His Army, Grand Officer of His Royal 
Order of the SS. Maurice and Lazare; 
Major-General Giovanni Randone, Milita- 
ry Medical Inspector, Commander of His 
Royal Order of the Crown of Italy; 

His Majesty the Emperor of Japan: His 
Excellency Mr. Tsunetada Kato, Envoy 
Extraordinary and Minister Plenipoten- 
tiary to Brussels; 

His Royal Highness the Grand Duke of 
Luxemburg, Duke of Nassau: Staff Colonel 
Count de T'Serclaes, Chief of Staff of the 
Fourth Military District of Belgium; 



d'Amerique; M. lecontre-amiral Charles S. 
Sperry, president de l'ecole de guerre 
navale; M. le general de brigade George B. 
Davis, avocat general de l'armee; M. le 
general de brigade Robert-M. O'Reilly, 
medecin general de l'armee; 

Le President des Etats-Unis du Bresil: 
M. le D r Carlos Lemgruber-Kropf, charge 
d'affaires a Berne; M. le colonel du genie 
Roberto Trompowski Leitao d'Almeida, 
attache militaire a la legation du Bresil a 
Berne; 

Le President des Etats-Unis Mexicains: 
M. le general de brigade Jose-Maria Perez; 

Le President de la Republique Francaise: 
S. E. M. Revoil, ambassadeur a Berne; M. 
Louis Renault, membre de l'lnstitut de 
France, ministre plenipotentiaire, juris- 
consulte du ministere des affaires etran- 
geres, professeur k la faculte de droit de 
Paris; M. le colonel brevete d'artillerie de 
reserve Olivier; M. le medecin principal de 
2 me classe Pauzat; 

Sa Majeste le Roi du Royaume-Uni de 
Grande-Bretagne et d'Irlande, Empereur 
des Indes: M. le major general Sir John 
Charles Ardagh, K. C. M. G., K. C. I. E., 
C. B.; M. le professeur Thomas Erskine 
Holland, K.C., D.C.L.; Sir John Furley, 
C. B.; M. le lieutenant-colonel William 
Grant Macpherson, C. 31. G., R. A. M. C; 

Sa Majeste le Roi des Hellenes: M. 
Michel Kebedgy, professeur de droit inter- 
national a l'Universite de Berne; 

Le President de la Republique de Guate- 
mala: M. Manuel Arroyo, charge d*affaires 
a Paris; M. Henri Wiswald, consul general 
a Berne, en residence a Geneve: 

Le President de la Republique de Hon- 
duras: M. Oscar Hcepfl, consul general a 
Berne; 

Sa Majeste le Roi d'ltalie: M. le mar- 
quis Roger Maurigi di Castel Maurigi, 
colonel dans Son armee, grand officier de 
Son ordre royal des SS. Maurice et Lazare; 
M. le major-general medecin Giovanni 
Randone, inspecteur sanitaire militaire, 
commandeur de Son ordre royal de la Cou- 
ronne d'ltalie; 

Sa Majeste l'Empereur du Japon: S. E. 
M. Kato Tsunetada, envoye extraordinaire 
et ministre plenipotentiaire a Bruxelles; 

Son Altesse Royale le Grand-Due de 
Luxembourg, Due de Nassau: M. le colo- 
nel d'etat-major comte de T'Serclae6, chef 
d'etat-major de la 4 m< " circonscription mili- 
taire de Belgique; 



18949- 



130 



His Highness the Prince of Montene- 
gro: Mr. E. Oilier, Envoy Extraordinary 
and Minister Plenipotentiary of the Swiss 
Confederation in Russia; Colonel Miirset, 
Chief Surgeon of the Swiss Federal Army; 

His Majesty the King of Norway: Cap- 
tain Daae, of the Medical Corps of the 
Norwegian Army; 

Her Majesty the Queen of the Nether- 
lands: Lieutenant-General (retired) Jonk- 
heer J. C. C. den Beer Poortugael, Member 
of the Council of State; Colonel A. A. J. 
Quanjer, Chief Medical Officer, First Class: 

The President of the Republic of Peru: 
Mr. Gustavo de la Fuente, First Secretary 
of the Legation of Peru at Paris; 

His Imperial Majesty the Shah of Per- 
sia: His Excellency Mr. Samad Khan 
Momtaz-os-Saltaneh, Envoy Extraordinary 
and Minister Plenipotentiary at Paris; 

His Majesty the King of Portugal and 
of the Algarves, etc.: His Excellency Mr. 
Alberto d'Oliveira, Envoy Extraordinary 
and Minister Plenipotentiary at Berne; 
Mr. Jose Nicolau Raposo-Botelho, Colonel 
of Infantry, former Deputy, Superintend- 
ent of the Royal Military College at 
Lisbon; 

His Majesty the King of Roumania: Dr. 
Sache Stephanesco, Colonel of Reserve; 

His Majesty the Emperor of All the Rus- 
sias: His Excellency Privy Councilor de 
Martens, Permanent Member of the Coun- 
cil of the Ministry of Foreign Affairs of 
Russia; 

His Majesty the King of Servia: Mr. 
Milan St. Markovitch, Secretary-General 
of the Ministry of Justice; Colonel Dr. 
Sondermayer, Chief of the Medical Division 
of the War 3Iinistry: 

His Majesty the King of Siam: Prince 
Charoon, Charge d' Affaires at Paris; M. 
Corragioni d'Orelli, Counselor of Legation 
at Pari*; 

His Majesty the King of Sweden: M. 
Sbrensen, Chief Surgeon of the Second 
Division of the Army; 

The Swiss Federal Council: Mr. E. Odier, 
Envoy Extraordinary and Minister Pleni- 
potentiary in Russia; Colonel Miirset, 
Chief Surgeon of the Federal Army; 

The President of the Oriental Republic 
of Uruguay: Mr. Alexandre Herosa, 
Charge d' Affaires at Paris, 



Son Altesse le Prince de Montenegro: 
M. E. Odier, envoye extraordinaire et min- 
istre plenipotentiaire de la Confederation 
suisse en Russie; M. le colonel Miirset, 
medecin en chef de Tannee federate suisse; 

Sa Majeste le Roi de Norvege: M. le capi- 
taine Daae, du corps sanitaire de l'armee 
norvegienne; 

Sa Majeste la Reine des Pays-Bas: M. le 
lieutenant-general en retraite Jonkheer 
J. C. C. den Beer Poortugael, membre du 
Conseil d'Etat; M. le colonel A. A. J. Quan- 
jer, officier de sante en chef de l re classe; 

Le President de la Republique du Perou: 
M. Gustavo de la Fuente, premier secre- 
taire de la legation du Perou a Paris; 

Sa Majeste Imperiale le Schah de Perse:* 
S. E. M. Samad Khan Momtaz-os-Saltaneh, 
envoye extraordinaire et ministre plenipo- 
tentiaire a Paris; 

Sa Majeste le Roi de Portugal et des Al- 
garves, etc.: S. E. M. Alberto d'Oliveira, 
envoye extraordinaire et ministre plenipo- 
tentiaire a Berne; M. Jose Nicolau Raposo- 
Botelho, colone d'infanterie, ancien de- 
pute, directeur du Royal college militaire 
a Lisbonne; 

Sa Majeste le Roi de Roumanie: M. le 
D r Sache Stephanesco, colonel de reserve; 

Sa Majeste l'Empereur de Toutes les Rus- 
sies: S. E. M. le conseiller prive de Mar- 
tens, membre permanent du conseil du 
ministere des affaires etrangeres de Russie; 

Sa Majeste le Roi de Serbie: M. Milan 
St. Markovitch, secretaire general du mi- 
nistere de la justice; M. le colonel D r Son- 
dermayer, chef de la division sanitaire an 
ministere de la guerre; 

Sa Majeste le Roi de Siam: M. le prince 
Charoon, charge d'affaires a Paris; M. Cor- 
ragioni d'Orelli, conseiller de legation a 
Paris; 

Sa Majeste le Roi de Suede: M. Siiren- 
sen; medecin en chef de la 2 mc division de 
l'armee; 

Le Conseil Federal Suisse: 31. E. Odier, 
envoye extraordinaire et ministre plenipo- 
tentiaire en Russie; 31. le colonel Miirset, 
medecin en chef de l'armee federate; 

Le President de la Republique Orien- 
tale de l'Uruguay: 31. Alexandre Herosa, 
charge d'affaires a Paris; 



131 



Who, after having communicated to 
«ach other their full powers, found in 
good and due form, have agreed on the 
following: 

Chapter I. — The sick and wounded. 



Article 1. 

Officers, soldiers, and other persons of- 
ficially attached to armies, who are sick or 
-wounded, shall be respected and cared for, 
"without distinction of nationality, by the 
belligerent in whose power they are. 

A belligerent, however, when compelled 
to leave his wounded in the hands of his 
adversary, shall leave with them, so far as 
military conditions permit, a portion of the 
personnel and materiel of his sanitary ser- 
vice to assist in caring for them. 

Art. 2. 

Subject to the care that must be taken 
"of.them under the preceding article, the 
sick and wounded of an army who fall into 
the power of the other belligerent become 
prisoners of war, and the general rules of 
international law in respect to prisoners 
become applicable to them. 

The belligerents remain free, however, 
to mutually agree upon such clauses, by 
way of exception or favor, in relation to 
the wounded or sick as they may deem 
proper. They shall especially have au- 
thority to agree: 

1. To mutually return the sick and 
wounded left on the field of battle after an 
•engagement. 

2. To send back to their own country 
the sick and wounded who have recovered, 
or who are in a condition to be trans- 
ported and whom they do not desire to re- 
tain as prisoners. 

3. To send the sick and wounded of the 
enemy to a neutral state, with the consent 
of the latter and on condition that it shall 
charge itself with their internment until 
the close of hostilities. 

Art. 3. 

After every engagement the belligereut 
•who remains in possession of the field of 
battle shall take measures to search for 
the wounded and to protect the wounded 
and dead from robbery and ill treatment. 

He will see that a careful examination 
is made of the bodies of the dead prior to 
their interment or incineration. 



Lesquels, apres s'etre communique lours 
pleins pouvoirs, trouves en bonne et due 
forme, sont convenus de ce qui suit: 



Cuapitre Premi er. —Des blesses et mal- 
ades. 

Article Premieh. 

Les militaires et les autres personnes 
ofticiellement attachees aux armees, qui 
soront blesses ou malades, devront Itre 
respectes et soignes, sans distinction de 
nationality, par le belligerant qui les aura 
en son pouvoir. 

Toutefois, le belligerant, oblige d'aban- 
donner des malades ou des blesses a son ad- 
versaire, laissera avec eux, autant que les 
circonstances militaires le permettront, une 
partie de son personnel et de son materiel 
sanitaires pour contribuer a les soigner. 

Art. 2. 

Sous reserve des soins a leur fournir en 
vertu de Particle precedent, les blesses au 
malades d'une armee tombes au pouvoir 
de Tautre belligerant sont prisonniers de 
guerre et les regies generates du droit des 
gens concernant les prisonniers leur sont 
npplicables. 

Cependant, les bettigerants restent libres 
de stipuler entre eux, a l'egard des prison- 
niers blesses ou malades, telles clauses 
d'exception ou de faveur qu'ils jugeront 
utiles; ils auront, notamment, la faculte 
de convenir: 

De se remettre reciproquement, apres 
un combat, les blesses laisses sur le champ 
de bataille; 

De renvoyer dans leur pays, apres les 
avoir mis en Stat d'etre transported ou 
apres guerison, les blesses ou malades 
qu'ils ne voudront pas garder prisonniers; 

De remettre a un £tat neutre, du oon- 
sentement de celui-ci, des blesses ou ma- 
lades de la partie adverse, a la charge par 
'Ktat neutre de les interner jusqu'a laj 
fin des hostilites. 

Art. 3. 

Apres chaque combat, l'occupant du 
champ de bataille prendra des mesures 
pour lechercher les blesses et pour les 
faire proteger, ainsi que les morts, contre 
le pillage et les mauvais traitements. 

II veillera a ce qtfe rinhumation ou l'in- 
cineration des morts soit precedee d'un 
examen attentif de leurs cadavres. 



132 



Art. 4. 

\- soon as possible each belligerent shall 
forward to the authorities of their country 

or army the marks or military papers of 
Identification found apon the bodies of the 
dead, together with a list of names of the 
sick and wounded taken in charge by 
him. 

Belligerents will keep each other mutu- 
ally advised of internments and transfers, 
together with admissions to hospitals and 
deaths which occur among the sick ami 
wounded in their hands. They will col- 
lect all objects of personal use, valuables, 
letters, etc., which are found upon the field 
of battle, or have been left by the sick or 
wounded who have died in sanitary forma- 
tions or other establishments, for trans- 
mission to persons in interest through the 
authorities of their own country. 

Art. 5. 

Military authority may make an appeal 
to the charitable zeal of the inhabitants t<> 
receive and, under its supervision, to care 
for the sick and wounded of the armies, 
granting to persons responding to such ap- 
peals special protection and certain im- 
munities. 



Art. 4. 
Cheque belligerant enverra, des qu'il 

sera possible, aux autorites de leur pays 
nu de leur armee les marques ou pieces 
militaiies diileiitite trouvees BUT les morts 
et l'etat nominatif des Messes ou malades 
recueillis par lui. 

Les belligerents se tiendront recipro- 
quementau courant des internements et des 

mutations, ainsi que des entrees dans les 
hopitaux et des deces survenus parmi les 
blesses et malades en leur pouvoir. lis 
recueilleront tons les objets d'un usage 
personnel, valeurs, lettres, etc., qui seront 
trouves sur les champs de bataille ou de- 
laisses pai les blesses ou malades decedes 
dans les establisscinents et formations 
sanitaires, pour les faire transmettre aux 

interesses paries autorites de leur pays. 
Art. 5. 

L'autorite militaire pourra faire appel 
au zele charitable des habitants pour re- 
cueillir et soigner, sous son contrdle, des 

blesses ou malades <\e^ arniees. en accord- 
ant aux personnel ayant repondn a cet 
appel une protection speciale et certaines 
immunites. 



Chapter II. — Sanitary formations and 
establishments. 

Art. 6. 

Mobile sanitary formations (i. e., those 
which are intended to accompany armies 
in the field) and the fixed establishments 
belonging to the sanitary service shall be 
protected and respected by belligerents. 

Art. 7. 

The protection due to sanitary forma- 
tions and establishments ceases if they are 
used to commit acts injurious to the enemy. 

Art. 8. 

A sanitary formation or establishment 
shall not be deprived of the protection ac- 
corded by article 6 by the fact: 

1. That the personnel of a formation or 
establishment is armed and uses its arms 
in self-defense or in defense of its sick and 
wounded. 

2. That in the absence of armed hospital 
attendants, the formation is guarded by an 
armed detachment or by sentinels acting 
under competent orders. 



Chaptitre II. — Des formations et etablis- 
sements sanitaires. 

Art. 6. 

Les formations sanitaires mobiles (e'est- 
a-dire celles qui sont destinees a accom- 
pagner les armees en campagne) et les 
etablissements fixes du service de sante 
seront respectes et proteges par les belli- 
gerant-. 

Art. 7. 

La protection due aux formations et 
etablissements sanitaires cesse si Ton en 
use pour commettre des actes nuisibles a 
l'ennemi. 

Art. 8. 

Ne sont pas considered comme etant de 
nature a priver une formation ou un etab- 
lisseinent sanitaire de la protection assuree 
par ['article 6: 

1° Le fait que le personnel de la forma- 
tion ou de l'establissement est arnie et 
qu'il use de ses amies pour sa propre de- 
fense ou celle de ses malades et blesses; 

2° Le fait qu'a defaut d*infirmiersarmes, 
la formation ou l'establissement est garde* 
par an piquet ou des sentinelles munis 
d'un mandat regulier; 



133 



3. That arms or cartridges, taken from 
the wounded and not yet turned over to 
the proper authorities, are found in the 
formation or establishment. 



3° Le fait qu il est trouve dans la forma- 
tion ou l'establissement des amies et car- 
touches retirees mix blesses et n'ayant pas 
encore ete versecs an service competent. 



Chapter III. — Personnel. 
Art. 9. 

The personnel charged exclusively with 
the removal, transportation, and treatment 
of the sick and wounded, as well as with 
the administration of sanitary formations 
and establishments, and the chaplains at- 
tached to armies, shall be respected and 
protected under all circumstances. If they 
fall into the hands of the enemy they shall 
not be considered as prisoners of war. 

These provisions apply to the guards of 
sanitary formations and establishments in 
the case provided for in section 2 of 
article 8. 

Art. 10. 

The personnel of volunteer aid societies, 
duly recognized and authorized by their 
own governments, who are employed in 
the sanitary formations and establishments 
of armies, are assimilated to the personnel 
contemplated in the preceding article, 
upon condition that the said personnel 
shall be subject to military laws and 
regulations. 

Each state shall make known to the 
other, either in time of peace or at the 
opening, or during the progress of hostili- 
ties, and in any case before actual employ- 
ment, the names of the societies which it 
has authorized to render assistance, under 
its responsibility, in the official sanitary 
service of its armies. 

Art. 11. 

A recognized society of a neutral state 
can only lend the services of its sanitary 
personnel and formations to a belligerent 
with the prior consent of its own govern- 
ment and the authority of such belliger- 
ent. The belligerent who has accepted 
such assistance is required to notify the 
enemy before making any use thereof. 

Art. 12. 

Persons described in articles 9, 10, and 
11 will continue in the exercise of their 
functions, under the direction of the ene- 
my, after they have fallen into his power. 

When their assistance is no longer indis- 
pensable they will he sent back to their 
army or country, within such period and 



Chapitre III. — Da personnel. 
Art. 9. 

Le personnel exclusivement affecte a 
['enlevement, au transport et au traite- 
ment des blesses et des malades, ainsi qu'a 
l'administration des formations et etablis- 
sements sanitaires, les aumOniers attaches 
aux armees, seront respectes et proteges 
en toute circonstance; s'ils tombent entre 
les mains de l'ennemi, ils ne seront pas 
traites comme prisonniers de guerre. 

Ces dispositions s'appliquent au person- 
nel de garde des formations et etablisse- 
ments sanitaires dans le cas prevu a Par- 
ticle 8, n». 2. 

Art. 10. 

Est assimile au personnel vise a Particle 
precedent le personnel des Societes de se- 
cours volontaires dfiment reconnues et au- 
torisees par leur Gouvernement, qui sera 
employe dans les formations et etablisse- 
ments sanitaires des armees, sous la re- 
serve que ledit personnel sera soumis aux 
lois et reglements militaires. 

Chaque £tat doit noitfier a l'autre, soit 
des le temps de paix, soit a l'ouverture ou 
au cours des hostilites. en tout cas avant 
tout emploi effectif, les noma des Societes 
qu'il a autorisees a preter leur concours, 
sous sa responsabilite, au service sanitaire 
officiel de ses armees. 



Art. 11. 

Une Societe reconnue d'un pays neutre 
ne peut preter le concours de ses person- 
nels et formations sanitaires a un bellige- 
rant qu'avec l'assentiment prealable de 
son propre Gouvernement et l'autorisation 
du belligerant lui-meme. 

Le belligerant qui a accepte le secours 
est tenu, avant tout emploi, d'en faire la 
notification a son ennemi. 

Art. 12. 

Les personnes designees dans les articles 
9, 10 et 11 continueront, apres quelles 
seront tombees au pouvoir de rennemi, 
a remplir leurs fonctions soussa direction. 

Lorsque leur concours ne sera plus in- 
dispensable, elles seront renvoyees a leur 
armee ou a leur pays dans les delais et 



134 



bj such mute as may accord with military 

— ity. They will carry with them such 
effects, instruments, arms, ami hones u 
are their private property. 



Art. 13. 

While they remain in his power the 
enemy will secure to the personnel men- 
tioned in article 9 the same pay and allow- 
ances to which persons of the same grade 
in his own armv are entitled. 



suivant l'itinerahe compatibles avec les 
necessites militaires. 

HUes emporteront, alors, les effets, lea- 
instruments, les armes et les chevaux 
qui sont leur propriete particuliere. 

Am. 13. 

L'ennemi assurera au personnel vise 
par l'article 9, pendant qu'il sera en son 
pouvoir, les mC'ines allocations et la nieme 
soldo qu'au personnel des memes grades de 
son armee. 



Chaptkr IV. — Materiel. 
Art. 14. 

If mohile sanitary formations fall into 
the power of the enemy, they shall retain 
their materiel, including the teams, what- 
ever may be the means of transportation 
and the conducting personnel. Competent 
military authority, however, shall have 
the right to employ it in caring for the 
sick and wounded. The restitution of the 
materiel shall take place in accordance 
with the conditions prescribed for the 
sanitary personnel, and, as far as possible, 
at the same time. 

Art. 15. 

Buildings and materiel pertaining to 
fixed establishments shall remain subject 
to the laws of war, but can not be diverted 
from their use so long as they are neces- 
sary for the sick and wounded. Com- 
manders of troops engaged in operations, 
however, may use them, in case of impor- 
tant military necessity, if, before such use, 
the sick and wounded who are in them 
have been provided for. 

Art. 16. 

The materiel of aid societies admitted to 
the benefits of this convention, in con- 
formity to the conditions therein estab- 
lished, is regarded as private property and, 
as such, will be respected under all circum- 
stances, save that it is subject to the rec- 
ognized right of requisition by belligerents 
in conformity to the laws and usages of 
war. 

Chapter V. — Convoys of evacuation. 

Art. 17. 

Convoys of evacuation shall be treated as 
mobile sanitary formations subject to the 
following special provisions: 



Chapitre IV. — Dti materiel. 

Art. 14. 

Les formations sanitaires mobiles con- 
serveront, si elles tombent au pouvoir de 
l'ennemi, leur materiel, y compris les atte- 
lages, quels que soient les moyons de 
transport et le personnel conducteur. 

Toutefois, l'autorite militaire compe- 
tent^ aura la faculte de s'en servir pour 
les soins des blesses et malades; la restitu- 
tion du materiel aura lieu dans las condi- 
tions pre vues pour le personnel Banitaire, 
et, autant que possible, en meme temps. 



Art. 15. 

Les bailments et le materiel des eta- 
blissements fixes demeurent soumis aux 
lois de guerre, mais ne pourront etre de- 
tournes de leur emploi, tant qu'ils seront 
necesaires aux blesses et aux malades. 

Toutefois, les commandants des troupes 
d'operations pourront en disposer, en cas 
de nScessites militaires importantes, en as- 
surant au prealable le sort des blesses et 
malades qui s'y trouvent. 

Art. 10. 

Le materiel des Societes de secours, ad- 
mises au benefice de la Convention con- 
formement aux conditions determinees 
par celle-ci,est considere comme propriete 
privee et, comme tel, respects en toute 
circonstance, sauf le droit de requisition 
reconnu aux belligerants 6elon les lois et 
usages de la guerre. 



Chapitre V. — Des convois d' evacuation . 

Art. 17. 

Les convois d'evacuation seront traites 
comme les formations sanitaires mobiles, 
sauf les dispositions specjales suivantes: 



135 



1. A belligerent intercepting a convoy 
may, if required by military necessity, 
break up such convoy, charging himself 
with the care of the sick and wounded 
whom it contains. 

2. In this case the obligation to return 
the sanitary personnel, as provided for in 
article 12, shallbe extended to include the 
entire military personnel employed, under 
competent orders, in the transportation 
and protection of the convoy. 

The obligation to return the sanitary 
materiel, as provided for in article 14, shall 
apply to railway trains and vessels in- 
tended for interior navigation which have 
been especially equipped for evacuation 
purposes, as well as to the ordinary ve- 
hicles, trains, and vessels which belong to 
the sanitary service. 

Military vehicles, with their teams, other 
than those belonging to the sanitary serv- 
ice, may be captured. 

The civil personnel and' the various 
means of transportation obtained by requi- 
sition, including railway materiel and ves- 
sels utilized for convoys, are subject to the 
general rules of international law. 

Chapter VI. — Distinctive emblem. 

Art. 18. 

Out of respect to Switzerland the heral- 
dic emblem of the red cross on a white 
ground, formed by the reversal of the fed- 
eral colors, is continued as the emblem and 
distinctive sign of the sanitary service of 
armies. 

Art. 19. 

This emblem appears on flags and bras- 
sards as well as upon all materiel apper- 
taining to the sanitary service, with the 
pei-mission of the competent military au- 
thority. 

Art. 20. 

The personnel protected in virtue of the 
first paragraph of article 9, and articles 10 
and 11, will wear attached to the left arm 
a brassard bearing a red cross on a white 
ground, which will be issued and stamped 
by competent military authority, and ac- 
companied by a certificate of identity in 
the case of persons attached to the sanitary 
service of armies who do not have military 
uniform. 

Art. 21. 

The distinctive flag of the convention 
can only be displayed over the sanitary 
formations and establishments which the 



1° Le belligerant interceptant an convoi 

pourra, si les necessites militaires l'exi- 
gent, le disloquer en se chargeant des 
malades et blesses qu'il contient. 

2° Dans ce cas, l'obligation de renvoyer 
le personnel sanitaire, prevue a l'article 
12, sera etendue a tout le personnel inili- 
taire prepose au transport ou a la garde du 
convoi et muni a cet effet d'un niandat 
regulier. 

L'obligation de rendre le materiel sani- 
taire, prevue a l'article 14, s'appliquera 
aux trains de chemins de fer et bateaux de 
la navigation interieure specialement or- 
ganises pour les evacuations, ainsi qu'au 
materiel d'amenagement des voitures, 
trains et bateaux ordinaires appartenant 
au service de sante. 

Les voitures militaires, autres que celles 
du service de sante, pourront etre cap- 
turees avec leurs attelages. 

Le personnel civil et les divers moyens 
de transport provenant de la requisition, y 
compris le materiel de chemin de fer et les 
bateaux utilises pour les convois, seront 
soumis aux regies gene rales du droit des 
gens. 

Chapithe VI. — Du signe distincti/. 

Art. 18. 

Par hommage pour la Suisse, le signe 
heraldique de la croix rouge sur fond blanc, 
forme par interversion des couleurs fede- 
rates, est maintenu comme embleme et 
signe distinctif du service sanitaire des 
armees. 

Art. 19. 

Cet embleme figure sur les drapeaux, les 
brassards, ainsi que sur tout le materiel se 
rattachant au service sanitaire, avec la per- 
mission de l'autorite militaire competente. 

Art. 20. 

Le personnel protege en vertu des arti- 
cles 9, alinea l er , 10 et 11 porte, fixe au bras 
gauche, un brassard avec croix rouge sur 
fond blanc, delivre et timbre par l'autorite 
militaire competente, accompagne d'un cer- 
tificat d'identite pour les person nes ratta- 
chees au service de sante des armees et qui 
n'auraient pas d'uniforme militaire. 



Art. 21. 

Le drapeau distinctif de la Convention 
ne peut etre arbore que sur les formations 
et etablissements sanitaires qu'elle ordonne 



136 



convention provides shall be respected, and 
with the consent of the military authori- 
ties. It shall i»- accompanied by the na- 
tional Bag of the belligerent to whose 
Bervice the formation or establishment is 
attached. 

Sanitary formations which have fallen 
into the power of the enemy, however, 
shall By no other flag than that of tin- 
Red Cross so long as they continue in that 
situation. 

Art. 22. 

The sanitary formations of neutral coun- 
tries which, under the conditions set forth 
in article 11. have been authorised to ren- 
der their services, shall fly. with the flag 
of the convention, the national flag of the 
belligerent to which they are attached. 
The provisions of the second paragraph of 

the preceding article are applicable to 
them. 

Art. 23. 

The emblem of the red cross on a white 
ground and the words Bed Cross or Genera 
may only be used, whether in time 
of peace or war, to protect or designate 
sanitary formations and establishments, 
the personnel aud materiel protected by 
the convention. 

Chaptbb VII. — Application ami execution 
of the convention. 

Am. 24. 

The provisions of the present convention 
are obligatory only on the contracting 
powers, in case of war between two or 
more of them. The said provisions shall 
cease to be obligatory if one of the bellig- 
erent powers should not be signatory to 
the convention. 

Art. 25. 

It shall be the duty of the commanders 
in chief of the belligerent armies to pro- 
vide for the details of execution of the 
foregoing articles, as well as for unfore- 
seen cases, in accordance with the instruc- 
tions of their respective governments, and 
conformably to the general principles of 
this convention. 

Art. 26. 

The signatory governments shall take 
the necessary steps to acquaint their troops, 
and particularly the protected personnel, 
with the provisions of this convention and 
to make them known to the people at 
large. 



de respecter et avec le eonsentemeiit de 
l'autorite militaire. 11 devra etre accoiu- 
pagne du drapeau national du belligerant 
dont releve la formation ou l'etablissement. 



Toutefois, les formations sanitaires torn- 
bees an pouvoir de l'enneini n'arboreront 
pas d'antre drapeau que celui de la Croix- 
Kouge, aussi longtemps qu'elles se trou- 
veront dans cette situation. 

Art. -1-1. 

Les formations sanitaires des pays neu- 
tres qui, dans les conditions prevues par 
['article 11, auraient ete autorisees a four- 
nir leurs services, doivent arborer, avec le 
drapeau de la Convention, le drapeau na- 
tional du belligerant dont elles relevent. 

Les dispositions du deuxieme alinea de 
['article precedent leur BOnt applicable*. 

Art. 23. 

L'embleme de la croix rouge sur fond 
blanc et les mots Oroix-Bouge ou Croix de 

i ,< //■ re ne pourront etre employes, soit en 
temps de paix, soit en temps de guerre, que 
pour proteger ou designer les formations 
et etablissements sanitaires, le personnel 
et le materiel proteges par la Convention. 

Chapitre VII. — De V application et de 
V execution de la convention. 

Art. 24. 

Les dispositions de la present* Conven- 
tion ne sont obligatoires que poor les Puis- 
sances contractantes, en casde guerre entre 
deux ou plusieurs d'eutre elles. Oes dis- 
positions cesseront d'etre obligatoires du 
moment OU l'une des Puissances bellige- 
rantes ne serait pas signataire de la Con- 
vention. 

Art. 2"). 

Les commandants en chef des armees 
belligerantes auront a pourvoiraux details 
(["execution des articles precedents, ainsi 
qu'aux cas non prevus, d'apres les instruc- 
tions de leurs Gouvernements respectifs et 
conformement aux principes generaux de 
la presente Convention. 

Art. 26. 

Les Gouvernements signataires pren- 
dront les mesures necessaires pour ins- 
truire leurs troupes, et specialement le 
personnel protege, des dispositions de la 
presente Convention et pour les porter a 
la connaissanee des populations. 



137 






Chapter VIII. — Repression of abuses and 

infractions. 

Art. 27. 

The signatory powers whose legislation 
may not now be adequate engage to take 
or recommend to their legislatures such 
measures as may be necessary to pre- 
vent the use, by private persons or by 
societies other than those upon which 
this convention confers the right thereto, 
of the emblem or name of the Ked Cross 
or Geneva Cross, particularly for commer- 
cial purposes by means of trade-marks or 
commercial labels. 

The prohibition of the use of the emblem 
or name in question shall take effect from 
the time set in each act of legislation, and 
at the latest five years after this conven- 
tion goes into effect. After such going 
into effect, it shall be unlawful to use a 
trade-mark or commercial label contrary 
to such prohibition. 



Art. 28. 
In the event of their military penal 
laws being insufficient, the signatory gov- 
ernments also engage to take, or to recom- 
mend to their legislatures, the necessary 
measures to repress, in time of war, indi- 
vidual acts of robbery and ill treatment of 
the sick and wounded of the armies, a- 
well as to punish, as usurpations of mili- 
tary insignia, the wrongful use of the flag 
and brassard of the Red Cross by military 
persons or private individuals not pro- 
tected by the present convention. 

They will communicate to each other 
through the Swiss Federal Council the 
measures taken with a view to such re- 
pression, not later than five years from the 
ratification of the present convention. 

General provisions. 

Art. 29. 

The present convention shall be ratified 
as soon as possible. The ratifications will 
be deposited at Berne. 

A record of the deposit of each act of 
ratification shall be prepared, of which a 
duly certified copy shall be sent, through 
diplomatic channels, to each of the con- 
tracting powers. 

Art. 30. 

The present convention shall become 
operative, as to each power, six months 
after the date of deposit of its ratification. 



Chapitre VIII. — De la repression des abus 
ct des infractions. 

A i:t. 27. 

Lea Gouvernements signataires, dont la 
legislation ne serait pas des a present suf- 
fisante, s'engagent a prendre ou a pro- 
poser a leurs legislatures les mesures ne- 
cessaires pour empecher en tout temps 
l'emploi, par des particuliers ou par des 
societes autres que celles y ayant droit en 
vertu de la presente Convention, de l'em- 
bleme ou de la denomination de Croix- 
Rouge ou Croix de Geneve, notarument, 
dans un but commercial, par le moyen de 
marques de fabrique ou de commerce. 

Linterdiction de l'emploi de l'embleme 
ou de la denomination dont il s'agit pro- 
duira son effet a partir de l'epoque deter- 
minee par chaque legislation et, au plus 
tard, cinq ans apres la mise en vigueur de 
la presente Convention. Des cette mise 
en vigueur, il ne sera plus licite de pren- 
dre une marque de fabrique ou de com- 
merce contraire a l'interdiction. 

Art. 28. 

Les Gouvernements signataires s'enga- 
gent egalement a prendre ou a proposer a 
leurs legislatures, en cas d'insuttisance de 
leurs lois penales militaires, les mesures 
necessaires pour reprimer, en temps de 
guerre, les actes individuels de pillage et 
de mauvais traitements envers des blesses 
et malades des armees, ainsi que pour 
punir, comme usurpation d'insignes mili- 
taires, l'usage abusif du drapeau etdu bras- 
sard de la Croix-Kouge par des militaires ou 
des particuliers non proteges par la pre- 
sente Convention. 

lis se communiqueront, par l'interme- 
diaire du Conseil federal suisse, les disposi- 
tions relatives a cette repression, au plus 
tard dans les cinq ans de la ratification de 
la presente Convention. 

Dispositions gtnerales. 

Art. 29. 

La presente Convention sera ratifiee 
aussitot que possible. 

Les ratifications serontdeposees a Berne. 

II sera dresse du depot de chaque ratifi- 
cation un proces-verbal dont une copie, 
certifiee conforme, sera remise par la voie 
diplomatique k toutes les Puissances con- 
tractantes. 

Art. 30. 

La presente Convention entrera en vi- 
gueur pour chaque Puissance six niois 
apres la date du depot de sa ratification. 



138 



Am. 31. 

The present convention, when duly rat- 
ified, shall supersede the Convention of 
August 22, 1864, in the relations between 
the contracting states. 

The Convention of 1864 remains in force 
in the relations between the parties who 
signed it but who may not also ratify the 
present convention. 

Art. 32. 

The present convention may, until De- 
cember 31, proximo, be signed by the 
powers represented at the conference 
which opened at Geneva on June 11,1906, 
as well as by the powers not represented 
at the conference who have signed the 
Convention of 1864. 

Such of these powers as shall not have 
signed the present convention on or before 
December 31, 1906, will remain at liberty 
to accede to it after that date. They shall 
signify their adherence in a written notifi- 
cation addressed to the Swiss Federal Coun- 
cil, and communicated to all the contract- 
ing powers by the said Council. 

Other powers may request to adhere in 
the same manner, but their request shall 
only be effective if, within the period of 
one year from its notification to the Federal 
Council, such Council has not been advised 
of any opposition on the part of any of the 
contracting powers. 

Art. 33. 

Each of the contracting parties shall 
have the right to denounce the present con- 
vention. This denunciation shall only be- 
come operative one year after a notification 
in writing shall have been made to the 
Swiss Federal Council, which shall forth- 
with communicate such notification to all 
the other contracting parties. 

This denunciation shall only become 
operative in respect to the power which 
has given it. 

In faith whereof the plenipotentiaries 
have signed the present convention and 
affixed their seals thereto. 

Done at Geneva, the sixth day of July, 
one thousand nine hundred and six, in a 
single copy, which shall remain in the 
archives of the Swiss Confederation and 
certified copies of which shall be delivered 
to the contracting parties through diplo- 
matic channels. 

(Here follow the signatures.) 



Art. 31. 

La presente Convention, d anient ratifiee 
remplacera la Convention du 22 aout 1864 
dans les rapports entre les Ktats contrac- 
tants. 

La Convention de 1864 reste en vigueur 
dans les rapports entre les Parties qui l'ont 
signee et qui ne ratifieraient pas egalement 
la presente Convention. 

Art. 32. 

La presente Convention pourra, jusqu'au 
31 decembre prochain, etre signee par lea 
Puissances representees a la Conference 
qui s'est ouverte a Geneve le 11 juin 1906, 
ainsi que par les Puissances non repre- 
sentees a cette Conference qui ont sign§ 
la Convention de 1864. 

Celles de ces Puissances qui, au 31 de- 
cembre 1906, n'auront pas signe la pre- 
sente Convention, resteront libres d'y ad- 
herer par la suite. Elles auront a faire 
connaftre leur adhesion au moyen d'une 
notification ecrite adressee au Conseil fede- 
ral Suisse et communiquee par celui-ci a 
toutes les Puissances contractantes. 

Les autres Puissances pourront de- 
mander a adherer dans la meme* forme, 
mais leur demande ne produira effet que 
si, dans le delai d'un an a partir de la noti- 
fication au Conseil federal, celui-ci n'a recu 
d'opposition de la part d'aucune des Puis- 
sances contractantes. 

Art. 33. 

Chacune des Parties contractantes aura 
la faculte de denoncer la presente Conven- 
tion. Cette denonciation ne produira ses 
effets qu'un an apres la notification faite 
par ecrit au Conseil federal Suisse; celui-ci 
communiquera immediatement la notifica- 
tion a toutes les autres Parties contrac- 
tantes. 

Cette denonciation ne vaudra qu'a re- 
gard de la Puissance qui l'aura notifiee. 

En foi de quoi, les Plenipotentiaires out 
signe la presente Convention et Font re- 
vetue de leurs cachets. 

Fait a Geneve, le six juillet mil neuf 
cent six, en un seul exemplaire, qui res- 
tera depose dans les archives de la Con- 
federation suisse, et dont des copies, cer- 
tifiees conformes, seront remises par la 
voie diplomatique aux Puissances con- 
tractantes. 

{Sigrmturee.) 



139 



FINAL PROTOCOL OF THE CONFERENCE FOR 
THE REVISION OF THE GENEVA CONVEN- 
TION. 

The Conference called by the Swiss 
Federal Council, with a view to revising 
the International Convention of August 
22, 1864, for the Amelioration of the Con- 
dition of Soldiers wounded in Armies in 
the field, met at Geneva on June 11, 1906. 
The Powers hereinbelow enumerated took 
part in the Conference to which they had 
designated the delegates hereinbelow 
named. 

(Names of Countries and Delegates.) 

In a series of meetings held from the 
11th of June to the 5th of July, 1906, the 
Conference discussed and framed, for the 
signatures of the Plenipotentiaries, the 
text of a Convention which will bear the 
date of July 6, 1906. 

In addition, and conformably to Article 
16 of the Convention for the peaceful settle- 
ment of international disputes, of July 29, 
1899, which recognized arbitration as the 
most effective, and at the same time, most 
equitable means of adjusting differences 
that have not been resolved through the 
diplomatic channel, the Conference uttered 
the following wish: 

The Conference expressed the wish that, 
in order to arrive at as exact as possible 
an interpretation and application of the 
Geneva Convention, the Contracting 
Powers will refer to the Permanent Court 
at The Hague, if permiueTrnSy^hT'cases 
and circumstances, such differences as may 
arise among them, in time of peace, c on- 
cerning the interpretation of the said Con- 
vention. 

This wish was adopted by the following 
States: 

Germany, Argentine Republic, Austria- 
Hungary, Belgium, Bulgaria, Chile, China, 
Congo, Denmark, Spain (ad referendum), 
United States of America, United States of 
Brazil, France, Greece, Guatemala, Hon- 
duras, Italy, Luxemburg, Montenegro, 
Nicaragua, Norway, The Netherlands, 
Peru, Persia, Portugal, Roumania, Russia, 
Servia, Siam, Sweden, Switzerland, and 
Uruguay. 

The wish was rejected by the following 
States: 

Corea, Great Britain, and Japan. 



PROTOCOLS FINAL UK LA CONFERENCE DE RE- 
VISION DE LA CONVENTION DE GENEVE. 

La Conference convoquee par le Conseil 
fdderal Suisse, en vue de la revision de la 
Convention internationale, du 22 aout 
1864, pour l'amelioration du sort des mili- 
taires blesses dans les armees en cam- 
pagne, s'est reunie a Geneve le 11 juin 
1906. Les Puissances dont remuneration 
suit out pris part a la Conference, pour 
laquelle Elles avaient design^ les Dele- 
gues nommes ci-apres: 

(Noma des pays et des deleguSs.) 

Dans une serie de reunions tenues du 11 
juin au 5 juillet 1906, la Conference a dis- 
cute et arrete, pour etre soumis a la signa- 
ture des Plenipotentiaires, le texte d'une 
Convention qui portera la date du 6 juillet 
1906. 

En outre, et en conformite de Particle 16 
de la Convention pour le reglement pa- 
cifique des conflits internationaux, du 29 
juillet 1899, qui a reconnu l'arbitrage 
comme le moyen le plus efficace et en meme 
temps le plus equitable deregler leslitiges 
qui n'ont pas ete resolus par les voies diplo- 
matiques, la Conference a emis le voeu 
suivant: 

La Conference exprime le vceu que, 
pour arriver a une interpretation et a une 
application aussi exactes que possible de la 
Convention de Geneve, les Puissances con- 
tractantes soumettent a la Cour Perma- 
nente de la Haye, si les cas et les circons- 
tances s'y pretent, les differends qui, en 
temps de paix, s'eleveraient entre elles 
relativement a l'interpretation de ladite 
Convention. 

Ce vceu a ete vote par les Etata sui- 
vants: 

Allemagne, Republique Argentine, Au- 
triche-Hongrie, Belgique, Bulgarie, Chili, 
Chine, Congo, Danemark, Espagne (ad 
re/.), £tats-Unis d'Amerique, £tats-Unis 
du Bresil, £tats-Unis Mexicains, France, 
Grece, Guatemala, Honduras, Italie, Lu- 
xembourg, Montenegro, Nicaragua, Nor- 
vege, Pays-Bas, Perou, Perse, Portugal, 
Roumanie, Russie, Serbie, Siam, Suede, 
Suisse et Uruguay. 

Ce vceu a ete rejete par les tats £sui- 
vants: Coree, Grande-Bretagne et Japon. 



In witness whereof the Delegates have 
signed the present Protocol. 

Done at Geneva, the sixth day of July, 
one thousand nine hundred and six, in a 



En foi de quoi, les Delegues ont signe 
le present protocole. 

Fait a Geneve, le six juillet mil neuf 
cent six, en un seul exemplaire, qui sera 



140 



single copy, which shall be deposited in the 

archives of the Swiss Confederation and 
certified copies of which shall be delivered 
to all the Powers represented at the Con- 
ference. 

(Signatures.) 

Note. — Signed at Geneva July 6, 1906. 

Ratification advised by the Senate Decem- 
ber 19, 1906. Ratified by the President of 
the United States JanfflffJ 2, 1007. 



depose aux archives de la Confederation 
Suisse et dont des copies, certifiees con- 
formes, seront delivr6es a toutes les Puis- 
sances representees a la Conference. 

(Signatures.) 



£>